*Taskin Akhtar & Sarbeswar Mishra Introduction: Contextualising The Issue Section 7 of the Hindu Marriage Act, 1955 [HMA] recognises a marriage only after the customary rites and ceremonies of either party are performed, reflecting the ancient Hindu philosophy of treating marriage as a samskara. However, despite being a sacred union, inevitable struggles may lead to its breakdown. Before 1984, ordinary civil courts dealt with such disputes. It was first in Para. 1.21 of the 59th Law Commission Report (1974) and then Chapter IV, Sec. IX (ii) of the Report of the Committee on the Status of Women in India (Towards Equality, 1975), which recommended the establishment of specialised courts to deal with such matrimonial disputes, which eventually led to the Family Courts Act, 1984. Such courts have exclusive jurisdiction over the disputes concerning marital status, divorce, guardianship, maintenance and custody. The core philosophy, as enumerated in the preamble of the Family Courts Act, is “to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs.” However, over the years, it has taken a toll, with a huge pendency of around 232,824 cases in 2026 for District Courts, as per the National Judicial Data Grid. One of the possible reasons is that many disputes labelled “matrimonial” are about disclosure, valuation, tracing of assets, and the quantification of monetary consequences after the relationship breaks down. This blog argues for a narrow solution to the issue that financial claims related to marriage in Hindus that do not concern the status of marriage, guardianship or custody can be dealt with through arbitration. Such arbitration may be guided through prenuptial agreements for private monetary disputes resulting from prior matrimonial disputes. Beyond Booz Allen: Revisiting The Non-Arbitrability Rule Indian courts have ruled that “matrimonial disputes” are non-arbitrable. This proposition is frequently supported by citing Booz Allen & Hamilton Inc. v. SBI Home Finance Ltd. [“Booz Allen”]. Although this case is concerned with mortgage enforcement and not marriage, it illustrates categories of issues that are not arbitrable. Out of the six illustrative categories of disputes that are not arbitrable, matrimonial disputes were listed alongside insolvency, criminal offences, testamentary matters, guardianship, and statutorily protected tenancies. The reasoning behind such classifications is that disputes arising from these matters affect “rights in rem” and only disputes affecting “rights in personam” should be arbitrable. However, the judgment in Booz Allen had expressly stated that matters merely incidental to the above-stated disputes, where subordinate rights of personam arise out of rights in rem, are arbitrable. Applying this clarification to matrimonial disputes, a financial claim arising after the status of marriage is decided precisely for such a subordinate right. The rights to alimony under Sec. 25 and property disposal under Sec. 27 of the HMA are not independent in nature. Judgments such as Babita @ Gayatri v. Mod Prasad @ Pintu have held that independent proceedings to enforce rights under Section 27 are not maintainable, which is in line with Balkrishna Kadam. The authors argue that once the status of the parties is settled, the case then becomes a dispute affecting rights in personam between the two former spouses related to their respective monetary claims and benefits. Once the claim converts to personam, the Booz Allen principle does not apply, opening a doctrinal pathway for post-divorce financial disputes that can be arbitrated. Arbitrability Of The Matrimonial Financial Claims: Satisfying The Fourfold Inquiry However, the arbitrability of such a case needs to be tested against the fourfold test laid down in Vidya Drolia v. Durga Trading Corporation. As per this case, the four tests for declaring a dispute as non-arbitrable are when: (i) the dispute concerns rights in rem, (ii) the dispute affects third-party rights and has an erga omnes effect, (iii)the dispute involves sovereign functions, or (iv)the dispute is expressly made non-arbitrable by statute. The authors argue that once the status of the parties is settled, the dispute turns into one affecting rights in personam, thereby failing the first test and moving towards the scope of arbitrability. Matrimonial financial claims affect only the parties to the dispute. The authors do not argue for arbitration as a medium to settle disputes affecting third parties, such as custodial disputes or child support, thereby limiting the scope to financial disputes alone. The Supreme Court in Shilpa Sailesh v. Varun Sreenivasan also treated the issue of spousal monetary settlement separately from issues of custody and economic rights of children. A financial dispute between ex-spouses prima facie does not affect the sovereignty of the nation. As to the last test, Section 7 of the Family Courts Act provides jurisdiction to family courts to deal with such matters, but nowhere does it expressly restrict arbitration. An analogy may be drawn from the factual matrix in the Vidya Drolia Case, where the Court allowed a nuanced inquiry rather than treating all rent or possession disputes as automatically non-arbitrable. Similarly, marriage may be considered as the factual setting, but the financial claim is not necessarily a marital status claim, and such financial claims, unlike status claims, may be arbitrable in nature. Now the inquiry shifts towards examining the mechanism that could route such a dispute for arbitration. The Contractual Trigger: Prenuptial Agreement As The Basis For Arbitration Apart from court-induced arbitration under Section 89 of the Code of Civil Procedure, 1908, parties often have a pre-existing agreement to refer the disputes to arbitration. Section 7 of the Arbitration and Conciliation Act, 1996, and judgements such as Indian Oil Corporation Ltd. v. Shree Ganesh Petroleum Rajgurunagar have reinforced that arbitration is a creature of contract. The blog argues that a prenuptial agreement can serve as a pre-existing agreement to direct independent financial disputes arising from a matrimonial dispute to arbitration. Prenuptial Agreements [Prenup] are domestic agreements between spouses, prospective spouses, or live-in partners, wherein they set out the terms on how they want to deal with possible future matrimonial disputes. Indian law disregards such arrangements as being against the philosophy of the sacramental nature of Hindu marriage and being contrary to public policy. However, in certain cases such as Bai Appibai v. Khimji Cooverji (1936), the Court approved the prenup, as it only elaborates the procedure in case of any difficulty and does not in itself affect the status of the relationship. In Sunita Devendra Deshprabhu v. Sitadevi Deshprabhu, the Bombay High Court considered the issues of maintenance and property in relation to the prenup without referring to it as unlawful. A prenup creates a contractual framework needed to separate the financial issues from matrimonial relations. Such separation allows the parties to deal with disputes concerning disclosure, valuation, contribution, reimbursement, or property division through arbitration, while disputes over status, divorce, and custody remain unchanged. Here, the prenup serves as a clause guiding the parties during an economic fallout arising out of a possible breakdown of their relationship. Overcoming The Objections: Paving The Path For Arbitrability As early as cases like Tekait Mon Mohini Jemadai, the Indian courts have raised the classical argument against a prenup that consent given months or years before marriage, for any future dispute, is too early to be meaningful. However, persuasive value may be drawn from Radmacher v. Granatino, where the UK Supreme Court rejected this argument and approved a prenup if it provides for robust disclosure, independent advice, and a meaningful and transparent opportunity to reconsider the prenup before marriage. Secondly, in cases like Nagendrappa Natikar vs Neelamma, it has been argued that statutory maintenance cannot be converted into a contractual debt. However, the authors argue for dealing with independent financial claims or the surplus economic resources left after settling the status dispute and granting a minimum protective statutory entitlement. Lastly, it has also been argued in Nagendrappa Natikar that family disputes need ongoing supervision and that decisions are tentative rather than a one-shot solution. However, such supervision is necessary when the dispute concerns the status of spouses, but once that status has been made clear and there is no reasonable prospect of reconciliation, that supervision is no longer necessary. Then the issues of asset division, tracing, reimbursement, or valuation need to be settled expeditiously, as these are inherently document-based, susceptible to a final accounting. The more the dispute resembles a ledger question, the more arbitration as a recourse makes sense. In arguendo, even if a prenuptial agreement is found to be against public policy, making it invalid under Section 23 of the Indian Contract Act, the arbitration agreement can still be enforced by applying the doctrine of blue pencil. The doctrine allows a court to sever the unenforceable portion of a contract clause and enforce the remaining valid portions of the contract. It is significant in arbitration matters, such as Shin Satellite Public Co. Ltd. v. Jain Studios Ltd., where even though parts of the contract were held invalid, the Supreme Court severed the objectionable portion and permitted enforcement of the valid arbitration agreement. Similarly, courts can distinguish between an agreement that promotes the separation of spouses and an agreement that merely allocates financial consequences if separation occurs. Arbitrability For A Promising Change: A Proposed Three-Pronged Test For Enforceability This blog proposes a three-pronged test for the enforceability of prenuptial arbitration clauses limited to financial matters. First, the prenup clause must be drafted in a manner that clearly states the financial terms and does not incorporate any status-related terms. Second, arbitration cannot be allowed to reduce the protection and jurisdiction guaranteed under Section 144 of the BNSS and Section 7 of the Family Courts Act, which remains within the exclusive domain of the courts. Third, full disclosure and independent legal advice should be provided to both parties before signing the prenup. A prenup, which does not ‘privatise marriage’ but separates the matrimonial relationship from future financial controversy in advance, is the right guiding framework for the arbitrability of independent financial disputes affecting individuals’ rights in personam and arising from a matrimonial dispute, resulting in speedy disposal and an effective remedy. To conclude, arbitration would simply provide a forum that courts already use informally, provided the clause is drafted such that it neither seeks to dissolve the marriage nor challenge the marital status. None of this means that it replaces the court as the guardian of matrimonial status; it simply shifts the remainder, including accounting, valuation, disclosure, and agreed-upon economic arrangement, to a forum designed precisely for that kind of disputes. The proposal does not seek the privatisation of family law, but rather a specific and testable model, in which arbitration may begin only after status is established. It is not a departure, but rather the next step toward reducing backlogs. *Taskin Akhtar is a third- year law student pursuing B.A. LL.B.(Hons.) at National University of Study and Research in Law, Ranchi. *Sarbeswar Mishra is a third- year law student pursuing B.A. LL.B.(Hons.) at National University of Study and Research in Law, Ranchi. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Shekhar Patil Introduction The child protection laws were formulated to address tangible dangers that children face, such as abusive homes. However, in today’s digital world, gadgets like smartphones make use of algorithms to turn a child’s personal emotions into monetary gains without the consent of the minor. There are child protection laws in India, namely the POCSO Act of 2012, the IT Act of 2000, and the DPDP Act of 2023. But none of these laws talk about the commercialization and exposure of children in online spaces deliberately built to get the attention of users. To bridge this gap, India requires a Digital Child Rights Law which will ensure that children are not just considered the consumers of technology, but as independent right holders entitled to privacy, dignity, and digital freedom under Article 21 of the Indian Constitution. Children as Content, the Commercialization of Childhood Modern social media has transformed the situation, creating a virtual space whereby childhood itself becomes public media. Caregivers or parents, as channel managers, document the daily activities as well as the emotional turmoil of the child and publish edited content to maximize audience engagement. In this digital economy, human attention is treated as currency, converting personal moments into public spectacles without the minor’s consent. The legal question that emerges here is: when does "featuring" a child in family content cross the line into digital child labour? In cases where income is generated by a social media platform due to the consistent presence of the child, the performances the child gives on screen, or the ability to retain the attention of the viewers, there is a generation of economic value. From a constitutional viewpoint, Article 24 ensures that the child is protected from exploitation, while Directive Principles in Articles 39(e) and 39(f) ensure that childhood is preserved from any kind of moral or material abandonment. In the case of M.C. Mehta v. State of Tamil Nadu (1996), the Supreme Court has stated that children should not be exploited economically in a way that their healthy upbringing is denied. Nevertheless, current statutory safeguards do not consider digital workplaces. Children can assist in "family businesses" under the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, if the child is not involved in any kind of work that will interfere with school education. Monetized family vlogging takes advantage of this family exemption. Furthermore, unlike child actors who have the legal safeguards of working hours, trust funds, and compulsory schooling, child influencers on the Internet do not have any form of statutory protection. Minors bear the long-term psychological burden of a persistent digital footprint. Deepfakes & Synthetic Abuse, Where Realness Is No Longer a Prerequisite for Harm While commercial family vlogging demonstrates how exploitative childhood can be, the proliferation of generative artificial intelligence and synthetic media represents a structural danger of non-consensual digital abuse of a child. Deepfake technology allows the offender to exploit the likeness of a minor, a child’s voice, or biometric characteristics for generating sexually explicit, defamatory, or abusive imagery without physical contact. Synthetic media abuse is a violation of the basic right to personal dignity and bodily integrity, which is guaranteed by Article 21 of the Constitution of India. The right to informational self-determination was recognized in K.S. Puttaswamy v. Union of India (2017). Moreover, in the case of Subhranshu Rout v. State of Odisha, the court emphasised that disseminating non-consensual explicit digital media amounts to an assault on one’s digital dignity. Traditional torts and crimes jurisprudence relies on establishing physical damage and identifiable physical offenders. However, deepfakes challenge this traditional approach since, in accordance with the procedures provided by Section 65B of the Indian Evidence Act of 1872 (now Section 63 Bharatiya Sakshya Adhiniyam, 2023), which requires strict electronic chain of custody certification, tracking the source of the artificial media presents enormous procedural difficulty. To resolve this, a special Digital Child Rights law must be passed to impose strict liability on those who host such synthetic media. Why Existing Indian Laws Are Failing India’s current child protection laws work well for traditional crimes, but the implementation in cases of algorithmic crimes shows some limitations. 1. The Protection of Children from Sexual Offenses (POCSO) Act, 2012 POCSO Act 2012 is designed to protect children against sexual abuse and exposure to pornographic material. In accordance with sections 13, 14 and 15, the law makes it an offense to produce, possess, and distribute child sexual abuse material (CSAM), including digitally represented material. However, the legal regime of POCSO operates based on identifiable acts of sexual exploitation. The law does not have the requisite legal flexibilities to regulate non-sexual exploitation of children commercially, such as the systematic exploitation of a child through the commercialization of the child’s daily activities by parents or guardians. Where parental oversharing or commercial vlogging involves minors' psychological distress, POCSO provides no administrative remedies. 2. The Information Technology Act, 2000, and Intermediary Guidelines The IT Act, 2000 read alongside the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, establishes framework for platform liability and content removal. Under Rule 3(1)(b), intermediaries are required to exercise due diligence and remove unlawful or non-consensual explicit content upon receiving actual knowledge or court orders. But, in practice, these measures face obstacles in the form of compliance delays. For a minor victim of deepfakes or non-consensual imagery, the removal period under the law, ranging from 24 to 36 hours, is inadequate to curb the dissemination process, as it happens in real time on different platforms. Moreover, the provisions of the IT Act deal with cybercrimes in general and do not acknowledge the specific duty of care that platforms have towards minor users. 3. The Digital Personal Data Protection (DPDP) Act, 2023 The enactment of the DPDP Act, 2023, was an important step in formulating the framework of data protection in India. Under Section 9(1), it is clearly stated that the data fiduciaries must obtain the consent of the parent or legal guardian for processing any personal data of the child. Similarly, under Section 9(3), the platforms cannot engage in the behavioural tracking of children or targeted advertising. Despite these protections, the DPDP Act suffers from three major statutory flaws. Firstly, the Act fails to recognise evolving capacities. According to Section 2(f) of DPDP Act, a child is defined as a person below 18 years of age. By treating a child at the age of five the same way as a seventeen year old child in terms of consent requirement, the law fails to recognize the principle of evolving capabilities of Article 5 of the UN Convention on the Rights of the child (UNCRC). Secondly, an adolescent privacy paradox arises, in contrast with Article 8 of GDPR of the European Union, wherein each Member State is allowed to provide adolescents, ranging from 13 to 16 years old, with digital consent autonomy, the DPDP Act requires that such adolescents remain under complete parental control until age 18. Hence, the law creates a paradox wherein an adolescent desiring privacy, advice regarding reproductive issues, or mental health information is denied access to it without parental consent. Thirdly, the blind eye towards 'Sharenting', under the legislative framework of mandatory parental consent, the law makes a presumption that the parents would act only in the best financial interest of the child. In case the parents themselves are the data fiduciaries of the child's sensitive data, and they themselves make use of it commercially, then there is no mechanism through which the child can object. Looking Beyond India: What Other Legal Systems Are Starting to Recognise Globally, there is a growing recognition that laws must be child-specific to protect children, considering modern digital realities. Firstly, France (Child Influencer Law, 2020): In France, the government passed Law No. 2020-1266 concerning children who are featured in videos on online platforms. Under the law, the money earned by the children will be kept in a protected bank account until the child attains legal age. They also have the ‘right to be forgotten’, allowing them to request the removal of their content without the need for parental consent. Secondly, the United Kingdom (Age-Appropriate Design Code): The Design Code, formulated under the UK Data Protection Act 2018, requires online platforms to design their services in a way that incorporates child safety and high levels of privacy by default and prioritizes the best interests of the child at the center of its policies. A Way Forward: Imagining a Digital Child Rights Law for India Addressing this gap needs focused legislation that should be based on some guiding principles. First, the most basic requirement of this law should be based on the right to privacy and on Article 3 of the UN Convention on the Rights of the Child (UNCRC), which mandates that any processing of digital data with respect to children shall take into consideration their best interests. Second, there is a need for children to have a right to digital erasure, which allows them to have the ability to delete material uploaded about them in their childhood once they grow up and have digital capability, despite the parental permission given at that time. Third, there must be clear regulations governing the commercial aspect of family vlogging, where the channel generates profit from child-centered content, a specific percentage of these earnings must be deposited into a protected trust fund for the child’s benefit, rather than be left completely at the parents’ discretion. Fourth, the deepfakes and synthetic photos of minors call for swift takedown policies that ensure the content is taken down immediately upon receiving reports about it, without going through lengthy processes associated with the usual cybercrime legislation. Finally, there must be mandatory privacy settings provided by the digital service provider for underage users. Conclusion The central challenge is the technologies themselves, but about the slow adaptation of the laws in comparison to the development of new innovations. Disregarding violations of privacy rights as insignificant issues deprives a whole generation of effective legal protection. India must take proactive actions to formulate a Digital Child Rights Law that safeguards children’s fundamental rights to privacy and dignity in the digital age. *The Author is a second- year law student pursuing B.A. LL.B.(Hons.) at West Bengal National University of Juridical Sciences, Kolkata. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Sanskar Chandak When a long-term live-in relationship ends in separation, Indian law offers the surviving partner a measure of protection through maintenance and other statutory remedies. When the same relationship ends in death, however, the law takes a markedly different approach. In particular, this raises an important question: does a long-term live-in relationship, in the absence of marriage, confer any entitlement to a deceased partner's estate? When a long-term live-in relationship ends in death rather than separation, the law under Indian succession has a one-word answer for the surviving partner: nothing. Under the Hindu Succession Act, 1956, the property of a Hindu male dying intestate devolves upon his Class I heirs, including his "widow." § 8 read with Schedule I, Class I. Likewise, Section 33 of the Indian Succession Act, 1925 recognises the succession rights of a surviving "wife" or "husband". Neither statute recognises a partner who might have spent twenty years building a home, a living, a business, or a bank balance with someone they never married. This represents a significant inconsistency in Indian family law: a partner who may seek maintenance under the Domestic Violence Act during the subsistence of the relationship becomes a legal stranger to the property the moment the relationship ends in death. Despite recommendations by the Justice V.S. Malimath Committee and the National Commission for Women to extend certain legal protections to women in live-in relationships, Parliament has not enacted a comprehensive statute conferring spousal or succession rights on live-in partners. Consequently, the legal status of such relationships continues to be shaped primarily through judicial decisions rather than legislative reform. This article examines whether the courts can protect the surviving partner using the already established means such as constructive trust, resulting trust, and estoppel, without tweaking the succession law at all. The qualified answer is yes. The Maintenance-Inheritance Gap In D. Velusamy v. D. Patchaiammal, (2010) ¶¶ 33–34, the Court adopted the American concept of “palimony” developed in Marvin v. Marvin, where an unmarried partner was successful in arguing that if there’s an implied understanding that the couple is going to share their property and when the relationship ended, either partner could still claim their right to the property. The Court also laid down a strict four-part test for when a live-in relationship can be considered as one “in the nature of marriage” if (i) the couple holds themselves out to society as being akin to spouses; (ii) they are of legal age to marry; (iii) they are otherwise legally qualified to enter into a marriage, including being unmarried; and (iv) they have voluntarily cohabited and presented themselves as spouses for a significant period. Relationships that are casual, temporary, or entered into merely for sexual purposes would not satisfy this test. The decision in Indra Sarma v. V.K.V. Sarma, (2013) adopted a stricter approach by denying women the legal protections available to live-in partners. The Court's reasoning was based on the fact that the woman had knowingly entered into a relationship with a man who was already married to another woman. Although these judgments recognise a long-term live-in partner as being "in the nature of a spouse" for the limited purposes of maintenance and relief under the Protection of Women from Domestic Violence Act, 2005, they are silent on succession rights. Neither judgment addresses the inheritance of a deceased partner's estate. Consequently, while the law protects a live-in partner during the partner's lifetime, such recognition does not extend to intestate succession, leaving the surviving partner without any statutory right to inherit. However, this apparent inconsistency is largely explained by the distinct purposes of the statutes involved. Each statute was enacted for its unique purpose, and no marriage-type relationship exists with respect to property inheritance; therefore, the surviving partner has been left with nothing. Constructive Trust: A Doctrine India Quietly Deleted One of the most effective ways to address this problem is through the doctrine of constructive trust. Developed by English and American courts, the doctrine enables courts to grant a beneficial interest to a person who has contributed to property even if their name does not appear on the title documents. In England, Stack v. Dowden and Jones v. Kernott allow courts to infer or even impute a common intention to share beneficial ownership from the “whole course of dealing” between cohabitants, moving well beyond a narrow tally of who paid what. India appears, on first glance, to have a ready-made equivalent. The Indian Trusts Act, 1882, § 94 (since repealed) contained a general residuary provision, Section 94 required a person holding property without the entire beneficial interest to hold it for the benefit of the person truly entitled to that interest. In effect, it functioned as a broad, catch-all constructive trust provision. Except that the provision was repealed, along with Sections 81 and 82, by the Benami Transactions (Prohibition) Act, passed to stop people from using “trust” like reasoning to hide the true ownership of benami property from tax authorities and creditors. The repeal targeted a real problem- the sections had been used to legitimise opaque, fraud-enabling property arrangements but its collateral consequence was that India lost its only general statutory hook for a court to declare a constructive trust in situations the legislature had not anticipated, including a live-in partner’s claim. What survives in the Trusts Act today is a set of narrow, specifically enumerated obligations “in the nature of trust” under Sections 80 to 93 The Indian Trusts Act, 1882, covering situations like fraud, mistake, and breach of confidence, none drafted with cohabitation in mind. Indian courts have been left to improvise around the gap using fragments of the Evidence Act and general equitable reasoning, rather than the confident, accretive doctrine English courts now apply in Stack and Jones. Resulting Trusts and the Limits of “Contribution” A resulting trust is the older, narrower cousin of the constructive trust. It arises where one person pays for property registered in another's name. In the absence of evidence to the contrary, equity presumes that the paying party has a beneficial interest in the property in proportion to their contribution. This doctrine survived the 1988 repeal in a different form. Indian courts continue to recognise that a person who contributes to the purchase of property held in another’s name may have an equitable claim, and D.Velusamy v. D. Patchaiammal, (2010) also points in this direction, noting that a live-in partner may acquire rights to property accumulated during the relationship where she can show a contribution to its acquisition. The difficulty, however, is that Indian resulting trust jurisprudence has traditionally recognised only direct and traceable financial contributions towards the acquisition of property. It does not ordinarily account for non-financial contributions, such as unpaid domestic labour, childcare, or career sacrifices, which English courts consider as part of the parties' "whole course of dealing." Consequently, a live-in partner who has contributed primarily through domestic or caregiving responsibilities is unlikely to establish a beneficial interest in the property, despite such contributions often giving rise to the greatest hardship when inheritance is denied. Estoppel - A Shield, not a Sword If contribution-based trusts have a narrow window, what about estoppel, the principle that someone who relied to their detriment on a partner’s assurance of the future ownership should not be allowed to have that assurance withdrawn? In English law, this is known as proprietary estoppel and treats it as capable of generating an independent cause of action; a claimant can sue to enforce the promised interest in land, not merely defend against someone else’s claim. Indian law has not taken the same step. Promissory and equitable estoppel in India, rooted in The Indian Evidence Act, 1872, § 115; Bharatiya Sakshya Adhiniyam, 2023, § 121 and developed through cases like Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) , has been applied almost exclusively against government bodies reneging on policy promises. The Indian judiciary has repeatedly emphasised that promissory estoppel can be used as a shield - it prevents a person from denying a promise that they have made, but not as a sword capable of creating an independent legal right. A handful of Indian judgments invoke “proprietary estoppel” in family-property disputes, borrowing English language about detriment and unconscionability, but the doctrine has no settled, independent existence in Indian property law comparable to its English counterpart. A partner relying on estoppel alone, without an underlying contribution-based trust claim, would be relying on the weakest and least tested of the three equitable tools available. What a Revived Doctrine Would Need None of this means that a new principle cannot be established, Indian courts have more of the requisite raw material than is commonly assumed, but haven’t yet transformed it into a coherent doctrine. The Delhi High Court's recent willingness, in Gurvinder Singh v. Government of NCT of Delhi, to treat reproductive material as constituting "property" capable of devolving as part of an estate reflects a judicial willingness to recognise non-traditional property interests without waiting for Parliament to legislate a specific category. That same willingness could turn toward a live-in partner’s claim, particularly if paired with the residuary obligations remaining in Sections 80 to 93 of the Trusts Act and a Stack-style “whole course of dealing” test imported as persuasive comparative authority. The 1988 repeal of Section 94 cuts both ways. It was surely a genuine loss, but it also reminds us of the fact that nothing in Indian law prevents the court from recognising a constructive trust through judicial reasoning alone, as English courts do so through case law rather than relying upon statutes. Reviving Section 94, or its functional equivalent through accretive case law, would do for live-in partners’ property claims what the Domestic Violence Act already did for their maintenance claims, recognising, without rewriting marriage law itself, that a relationship can generate enforceable obligations. Conclusion Succession law reform in India is likely to take time since it touches every personal law at once; however, equity, by contrast, is capable of judicial development. A surviving live-in partner does not need Parliament to amend the Hindu Succession Act before a court can ask whether the deceased’s house was, in substance, if not in form, held for both partners’ benefit. The Indian judiciary has recognised various rights of live-in partners, and when the question arises about the inheritance rights of the live-in partners, the judiciary is not short of legal tools; however, what is absent is the willingness to formulate it as a comprehensive doctrine, as the English courts have done. *The Author is a third- year law student pursuing B.A. LL.B. at Maharashtra National Law University, Mumbai. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Vanshika Rathi India’s identity is defined by a pluralistic tapestry of religions and customs. To preserve this 'unity in diversity,' our lawmakers favoured enactment of personal laws over a Uniform Civil Code in matters like marriage and succession. However, having separate laws for marriage, adoption, succession and so on based on religious orientation have presented us with unique problems. From polygamy to discrepancies in maintenance, personal laws have perpetuated weeds of inequality and conflict. This problem extends even to the codification of the Hindu scheme of succession. One of the many challenges that the codification presents us with is the subordination of traditional customary succession. It risks eroding cultural sentiments and negatively affecting the diversity of our civilization. The profound sense of alienation and neglect experienced by communities whose traditional social structures are marginalized by the current legal framework is far from a triviality and this is what warrants speaking up for them. This paper has been designed as an advocacy for the rights of matrilineal communities to whom Hindu Succession Act, which is predominantly based on the Mitakshara and Dayabhaga schools is applicable at present. KEYWORDS Patriarchy, diversity, customs, succession. PATRIARCHY IN PERSONAL LAWS Patriarchy is a venomous seed. If sown in society, its growth leads to an infestation of weeds of inequality. Yet time and again, our legal framework becomes the very devil that sows these weeds into the fabric of the society unbeknownst that it may starve the society of its harmonious coexistence. Personal laws in India contain many patriarchal provisions that have been incorporated in the name of secularism and pluralism which recognize personal laws as integral to religious identity and thus, warrant non-interference under Article 25 of the Indian Constitution which guarantees the right to freely profess, practice, and propagate religion. Legitimization of polygamy exclusively for the Muslim community is one such example of a patriarchy reinforcing provision, that draws its legitimacy from personal laws and perpetuates inequality among the members of the society. The succession scheme in India is no less infected from this contagion, yet it is often less criticized for being discriminatory and more awarded for being neutral. In India, the succession scheme of Hindus has been codified under the Hindu Succession Act of 1956, the Muslim scheme of succession remains uncodified and succession for Christians, Parsis and non-Hindus married under the Special Marriage Act of 1954 is codified under the Indian Succession Act of 1925. Codification is a practice intended to help laws maintain principles of equality and keep up with societal shifts, however, the Hindu Succession Act of 1956, a code primarily based on the Mitakshara and Dayabhaga schools reinforces discriminatory practices and gender inequality through its separate schemes of succession for men and women and the concept of coparcenary which despite all amendments, still exclude women married into the family to be regarded as coparceners or joint heirs under Section 6. Before the 2005 amendment, these provisions were even more discriminatory as daughters born in the family were also not regarded as coparceners or joint heirs to the coparcenary property and could also not act as Karta for the Hindu Undivided Family even if they were the eldest living member of the family. CUSTOMARY SCHEMES OF SUCCESSION Despite these repercussions of the Act, it has been prioritised not just over state legislations but also alternate schemes of succession that are not as discriminatory. The customary succession schemes in many regions of India has been superseded by the Hindu Succession Act. For example, Section 7 of the Hindu Succession Act of 1956 bars the application of Marumakkattayam and Aliyasantana law to any Hindu to whom such law applies and prescribes that property of such Hindus shall devolve as per the testamentary and intestate succession scheme prescribed under the Act. It has not only forced them to adapt to new laws on inheritance as opposed to practising their own customary laws but has also firmed the ground for patriarchy in the daily affairs of such communities. While Section 17 of the Hindu Succession Act, 1956 makes attempts to prioritize the mother’s line ahead of the father’s line for such Hindus (by adding cognates to the list of legal heirs in male intestate succession and by preferring mother of the deceased female over her husband in female intestate succession), it barely incorporates the full "rigour" of the traditional matrilineal system. The Marumakkattayam system of inheritance which draws its legitimacy from various sacred local Hindu texts and is followed by the Nair community in Kerala, is a matrilineal system where property flows from a woman to her sister’s children. Similarly, Aliya Santana is also a matrilineal scheme of succession followed in the Tulu Nadu region among communities such as the Bunts and Billavas. Under this system, the property of an intestate female devolves upon her lineal descendants, failing whom it passes to her mother's kavaru and husband, and thereafter to her maternal grandmother. The property of an intestate male devolves upon his mother, widow(s), and lineal descendants; in their absence, it passes to his mother's kavaru, then to his father and maternal grandmother's kavaru, and finally to his mother's maternal grandmother. These systems are very different from the patrilineal coparcenary system central to the Mitakshara and Dayabhaga schools. Thus, bringing them under the cohorts of the Hindu Succession Act, not only negatively affects the diversity they bring to the landscape of India but also risks restricting their traditional autonomy. Furthermore, matrilineal succession schemes are also important tools to empower women and make them financially independent in an otherwise patriarchal societal set up. Thus, their systems provide the social fabric necessary to hold the various threads of Indian Social Justice system intact. Like there are temples only accessible by women, these systems of inheritance favour women and have been wrongfully restrained and replaced by the more discriminatory provisions of the Hindu Succession Act. It is thus necessary not just for maintaining the customary legacy of such communities but also for providing women with an equitable chance of survival and growth, that the matrilineal systems under section 7 of the Hindu Succession Act be allowed to practice their schemes of succession. STATE LEGISLATIONS AND THEIR IMPOTENCE While state legislations had originally been enacted to uphold the sui generis nature of succession in these communities, they stood repealed once the Hindu Succession Act was enacted. In Mary Roy v. State of Kerala, the Hon’ble Court applied Indian Succession Act, 1925, a central legislation, to Syrian Christians in Travancore in place of the more discriminatory Travancore Act of 1916. While this decision was primarily aimed at remedying inequity and did not, on its own, establish a general rule that central laws are always preferred over local ones, however, the Indian Constitution provides a clear hierarchy for such matters. "Wills, intestacy and succession" are enumerated in Entry 5 of the Concurrent List (List III), granting both Parliament and State Legislatures the authority to enact laws. According to the doctrine of repugnancy established in Article 254(1), when a central law is enacted on the same subject and is contrary to an existing state law, the central law prevails, and the state legislation is rendered void or impliedly repealed to the extent of that inconsistency. Thus, courts put heavy weight on central legislations over state legislations in matters relating to personal laws. In the case Jose Coutinho v. Maria Luiza Valentina Pereira, the Hon’ble court held that Goa Civil Code will be given preference over Indian Succession Act in matters relating to succession for the citizens of Goa. However, a Civil Code in a state is different from a state legislation and thus, the ratio of this case cannot be used to make the case of such Hindus to whom Mitakshara and Dayabhaga schools of law are not applicable. ALTERNATIVE REMEDY Section 2 of the Hindu Succession Act, 1956, defines the scope of the Act by specifying the persons to whom it applies. It applies to all Hindus, including Virashaivas, Lingayats, and followers of the Brahmo, Prarthana, and Arya Samaj movements. It also extends to persons professing the Buddhist, Jain, or Sikh religions. Additionally, the Act applies to any person who is not a Muslim, Christian, Parsi, or Jew, unless it is established that such person would not have been governed by Hindu law or any custom or usage forming part of that law had the Act not been enacted. The Explanation to Section 2 further clarifies who is to be regarded as a Hindu, Buddhist, Jain, or Sikh for the purposes of the Act. It includes legitimate and illegitimate children whose parents both belong to any of these religions, as well as children with one parent belonging to any of these religions, provided they are brought up as members of that religious community. The Act also applies to persons who have converted or reconverted to Hinduism, Buddhism, Jainism, or Sikhism. It is pertinent to note that under Section 2(2) of the Act, a carve-out has been made, to exclude the members of any Scheduled Tribe (as defined by Article 366 of the Constitution) from the applicability of the Act. This exemption remains in force unless the Central Government specifically issues a notification in the Official Gazette directing otherwise. In the context of the above policy problem related to Hindus to whom Marumakkattayam and Aliya Sanatana law applies, it is suggested that to effectively protect the distinct cultural and legal heritage of these matrilineal communities, a strategic amendment could involve inserting a "carve-out" clause similar to the one that exempts Scheduled Tribes under Section 2. However, the mere inclusion of these communities in the list of exempted groups under Section 2 would be functionally hollow without the concurrent repeal of Section 7 and Section 17 which will then come in direct conflict with the inserted clause and create considerable difficulties for judicial officers to ascertain whether to apply Hindu Succession Act or Marumakkattayam or Aliya Santana systems. Thus, to assimilate the special practices of such communities into the accepted framework of succession laws in India without any conflict to the existing provisions in the Hindu Succession Act and otherwise, an alternative and more effective course of action is to exclude these communities from the Act’s applicability by inserting a specific ‘carve-out clause’ under Section 2 of the Hindu Succession Act of 1956 intended to exclude Marumakkattayam and Aliya Santana systems from the Act’s applicability. When combined with an amendment to repeal Section 7 and Section 17, this shall serve as a successful step in preventing the wrongful curtailment of these matrilineal communities and their unique practices. THE CASE FOR UNIFORMITY The other side of the debate has long contended that incorporating traditional schemes of succession runs the risk of "diversifying law" and “increasing legal complexities". Proponents of the Hindu Succession Act (HSA), 1956, even argue that the Act actually represents a monumental advance for women’s rights. Furthermore, there is a legitimate concern that granting community-specific exemptions under Section 2(2) could create a precedent for other groups to claim similar "carve-outs," potentially fracturing the cohesive legal identity the Act sought to build. However, a deconstruction of this "proposed uniformity" under the Hindu Succession Act reveals that it has often functioned as a "tyranny of the majority" where the popularly followed schools were given preference over the unique social structures of matrilineal communities. Furthermore, the concern regarding claim for similar grants is also without merit as Justice cannot be denied just because it is likely that others would also want to claim it. Justice is for all who claim it and thus, the number of claimants should not discourage its delivery. Incorporation of matrilineal communities to the unified framework under the Hindu Succession Act in one way reinforces uniformity as it proposes a framework that will most likely result in harmonious coexistence and provide unity while preserving the diversity of our civilization. Thus, to claim that incorporation of matrilineal communities and their practices in the legal framework of our country risks affecting uniformity is logically incoherent and sets the wrong tone for advocating for uniform legal frameworks. CONCLUSION Matrilineal systems of succession in India represent unique customary traditions that have accorded women a central position in the family and in property allocation. The curtailment of these systems under the Hindu Succession Act, 1956, not only negatively affects the diversity and traditional autonomy principles in our nation but also reinforces gender discrimination. Furthermore, the claims that the present framework is necessary to prevent fragmentation have wrongfully assumed that uniformity lies in biased Codes. This paper argues that incorporation of these communities will naturally result in harmonious coexistence and thus would provide unity while preserving the diversity in our civilization. It is thus in the interests of justice, equity and conscience that these communities and their special practices be amalgamated in the present legal framework and to realize this incorporation, it is proposed that an amendment at the national level that repeals Section 7 of the Hindu Succession Act, and amends Section 2 to include customary matrilineal systems of succession in the list of those who are exempt from the Act's applicability, be made. *The Author is a third- year law student pursuing B. Com. LL.B. at Jindal Global Law School. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Nupoor Atram Introduction The Hindu Succession Act (Amendment), 2005 (“Act”) brought a major change in the inheritance rights. This amendment eradicated the system where only sons were considered as the heirs of the ancestral property. This amendment gave daughters coparcenary rights by birth, placing them on an equal footing with sons in matters of inheritance. This amendment simply recognised the idea that inheritance should not be based on the gender of a person. However, not all women could benefit from the amendment as Section 2(2) of the Hindu Succession Act excludes members of Scheduled Tribes from the Act unless a notification is issued by the central government to them. Yet, even after seven decades the government has not issued any such general notification. Consequently, many tribal women still do not enjoy the same statutory inheritance rights that are available to other women under the Hindu law. This raises an important question. Should a tribal woman’s right to inherit depend on the customs followed by her or her community? Or should it depend on whether her community follows tradition similar to Hindu customs? The aim of Section 2(2) was to protect the unique customs and traditions of the tribal community as the government did not intend to interfere with the personal laws of the tribal people. However, in the process of protecting personal law autonomy, many tribal women have been left without equal inheritance rights, and in some communities, customary succession rules do not provide comparable protection for women’s inheritance claims. Section 2(2): Protecting Tribal Identity or Denying Equal Rights? Section 2 of the Act lays down who the Act applies to, but Section 2(2) creates an exception for Scheduled Tribes (ST), as recognised under Article 366(25) read with Article 342 of the Constitution, unless the Central Government extends the Act to them through a notification. This exception was created to protect tribal customs and personal laws, which the Constitution also seeks to preserve through Articles 25 and 29, along with the Fifth and Sixth Schedules. The issue is that the exclusion has continued for decades without any review. Despite the power given to the Central Government to extend its provision to the ST, this power has never been used. At the same time, no separate law has been introduced to ensure that tribal women receive equal protection in matters of inheritance. Something which started as a way to preserve the tribal customs turned into a legal gap that leaves several tribal women without adequate safeguards. This does not mean that every tribal custom is discriminatory, as they differ from one tribe to another, and many continue to play an important role in preserving tribal identity. But where customary practices deny women equal inheritance rights, the absence of a statutory remedy becomes a serious concern. When Custom Decides Who Inherits Inheritance rules differ from one community to another, but in many communities the property has been passed through male line. Practices such as Taben Jom, Ghar Di Jamai and Ghar Jamai are followed by some tribal communities where women may receive only limited rights of use and not the full ownership. These practices take place only in cases where either there is no male heir or the male heir is unable to do so. These arrangements are generally limited and subject to conditions. Under such arrangement the property is managed by the son-in- law and not the daughter herself. These customs may offer some protection, but they do not give women equal ownership over the property. At the same time applying Hindu law to tribal communities may interfere with their customs and affect their cultural identity. However, protecting the culture should not mean accepting practices that put women at disadvantage. Customs are never static and should change along with society. Many practices that were once widely accepted are no longer followed because they no longer reflect the values of equality and fairness. Preserving one’s culture and protecting women’s right of equality can co-exist. The issue is whether these customs that deny women equal inheritance should continue to receive legal protection simply because they have existed for generations. Should Religion Decide a Woman’s Right to Inherit? Section 2(2) also gave rise to another legal issue. As there was no automatic applicability of the Act to the Scheduled Tribes, it became necessary to determine whether Hindu succession law could apply. This resulted in the judicial development of the “Hinduisation” test. Under this test, the courts would try to find out if a tribal group has adopted enough Hindu customs and practices to be able to apply Hindu Succession Act. This test was first applied in the case of Budhu Majhi v. Dukhan Majhi case where it was to be decided if the adoption of Hindu customs by a particular community was sufficient to apply the Hindu Succession Act in spite of non-application of Section 2(2). The same approach was later followed in Labishwar Manjhi v. Pran Manjhi case where factors such as having Hindu names, performing funerals, shradh ritual and wearing sindoor were considered sufficient “Hinduisation”. The test has been criticised because the application of inheritance rights came to depend on the adoption of Hindu customs rather than on a clear statutory framework. For a tribal woman, the right to inherit property should not depend on whether the tribe follows some of the rituals of Hindus. The test also raises concerns under Articles 25 and 29 of the Constitution, which protect religious freedom and the right of communities to preserve their culture. The Legal Gap Faced by Tribal Women For many tribal women the major problem is the absence of a clear legal framework governing inheritance rights. Unlike codified personal laws, customary inheritance practices are often unwritten and they differ from one community to another and most of them do not give women an effective mechanism to challenge discriminatory practices. This gives rise to constitutional concerns as Articles 14 and 15 guarantee equality and prohibits discrimination. The SC reaffirmed this principle in the case of C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, observing that women’s property rights must be interpreted in line with the constitutional guarantees of equality and dignity. Yet many tribal women continue to fall outside the protection of both the Hindu Succession Act and any alternative statutory framework that adequately safeguards their inheritance rights. Judicial Position Although the courts have recognised the difficulties faced by tribal women, they have consistently observed that a complete solution is not possible as long as Section 2(2) remains in force. In Madhu Kishwar v. State of Bihar, the Supreme Court examined the validity of customs that barred tribal women from inheriting property. Although the Court did not strike down these customs, it recognised the rights of dependent tribal women to possess and cultivate land necessary for their livelihood. In his dissenting opinion, Justice K. Ramaswamy went a step further and observed that the principles of the Hindu Succession Act should also apply to tribal women. Several years later, this issue again came up in Kamla Neti (Dead) through Legal Representatives v. Special Land Acquisition Officer where the appellant was denied an equal share in land acquisition compensation because under the tribal laws women cannot be recognised as legal heirs and Hindu law cannot be applied on them. The Supreme Court acknowledged that this created an unfair situation and urged the Central Government to reconsider the existing legal framework. However, no legislative action has been taken and Section 2(2) continues to remain unchanged. In Ram Charan v. Sukhram, the Supreme Court adopted a more rights-protective approach by holding that the burden of proving a customary practice denying inheritance rights to women lies on the person relying on that custom, rather than on the woman claiming inheritance. This made it easier for women to challenge discriminatory customary practices before the courts. However, the decision was confined to the custom practices of the tribal communities before the court and did not lay down a principle that could be uniformly applied to all Scheduled Tribes, and therefore its broader impact remained limited. Consequently, in the recent case of Nawang v. Bahadur, the Court held that equal inheritance rights under the Hindu Succession Act cannot be extended to Scheduled Tribes unless Parliament amends Section 2(2) or the Central Government issues a notification under the provision. In doing so, it departed from the earlier Hinduisation approach adopted in Budhu Majhi and Labishwar Manjhi, clarifying that the adoption of Hindu customs alone cannot override the statutory exclusion under Section 2(2). These decisions collectively demonstrate that the courts are cognisant of the difficulties faced by the tribal women and have recognised that the present legal position can lead to unequal outcomes. However, they have also said that this change cannot be brought by judicial interpretation alone and for a lasting change legislative intervention by Parliament is necessary. Need for reform The issue concerning Section 2(2) is often presented as a choice between the protection of tribal customs and ensuring equal inheritance rights to tribal women. These goals need not necessarily be in conflict with each other. Every community has the right to protect their customs including the tribal community. Section 2(2) was enacted to preserve this diversity. However, its continued operation leaves many tribal women without protection under inheritance laws. This raises an important question: can these customs be preserved while also ensuring that tribal women receive equal and fair inheritance rights? One way forward could be to enact a separate law on inheritance for scheduled tribes that sets out minimum constitutional safeguards while allowing tribal community to retain their customs. A National Tribal Inheritance Commission should be established to examine tribal inheritance practices in consultation with tribal communities especially women and recommend community specific reforms or notification wherever necessary. Further, a mandatory periodic review of Section 2(2) can be provided by the Parliament so that the continued exclusion of ST is regularly reassessed instead of remaining unchanged indefinitely. Conclusion Section 2(2) was introduced to protect the unique customs and cultural identity of ST. However, its continued operation has resulted in the exclusion of many tribal women from equal inheritance rights. The constitution seeks to protect both equality and the cultural identity of tribal communities. The major challenge is to ensure that one is not protected at the cost of other. Although the courts have recognised the problems faced by tribal women, they have also made it clear that this issue cannot be resolved by the judiciary alone. As long as Section 2(2) remains unchanged, many tribal women will continue to be denied equal inheritance rights. It is now for the Parliament to reconsider women’s rights. Any reform should be introduced only after consulting tribal communities, especially women, so that their customs are respected while ensuring equal inheritance rights. *The Author is a third- year law student pursuing B.A. LL.B. (Hons.) at Maharashtra National Law University, Mumbai. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Navdeep Singh Introduction The landmark case of American Jurisprudence Riggs v. Palmer disallowed Elmer E. Palmer from inheriting his grandfather’s estate through will since he had intentionally poisoned and murdered his grandfather to ensure that the will made in his favour could not be revoked by the deceased. This case laid down a public policy: “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” This rule was codified in Section 25 of the Hindu Succession Act, 1956 (“HSA”), which provides: “A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.” In the context of this disqualification, the question arises about the status of such individuals who have been so disqualified: Whether they are considered to be predeceased of the intestate or whether they are considered to be non-existent or unborn for the purpose of devolving the property through intestate succession. In answering this very question, there seems to be an inherent conflict between the statutory mandate and the judicial Interpretation. Statutory Text and A Strange Interpretation Section 27 of HSA provides an explicit answer to this question. It provides that individuals disqualified under the Act should be deemed to have died before the intestate. However, the broader, or more precisely, the contrary position was settled in Vellikannu v. R. Singaperumal (“Singaperumal”), holding that such murderers are to be construed as non-existent. It reasoned that prior to the enactment of the Hindu Succession Act, 1956, such individuals were disqualified on the ground of public policyand justice, equity, and good conscience. Reliance was placed upon the decision of the Privy Council in Kenchava Kom Sanyellappa Hosmani and anr. v. Girimallappa Channaipa Somasagar (“Channaipa Somasagar”), wherein it was held that “The murderer should be treated as non-existent and not as one who forms the stock for a fresh line of descent.” Singaperumal, while acknowledging that, as per HSA, the murderer is to be treated as predeceased, placed reliance upon Statement of Objects and Reasons (“SOR”) of the Act, which cited the Channaipa Somasagar, which held that the murderers are disqualified based on justice, equity and good conscience and should be regarded as non-existent. Singaperumal settled that an individual guilty of murdering the deceased cannot have any relationship with the deceased’s estate, and therefore, under Sections 25 and 27 of HSA, a murderer is disqualified from inheritance, and the fresh stock of the line of descent ceases to exist. Therefore, the judicial interpretation preferred the pre-HSA jurisprudence based on justice, equity, and good conscience, rather than strictly interpreting the statutory mandate; accordingly, such individuals who have murdered the intestate shall be treated as non-existent, rather than as predeceased for intestate succession of his property. Implications of Treating Murderers As Non-Existent The treatment of murderers as non-existent rather than predeceased does not merely disqualify the murderer, but also his heirs, who were entitled to such property under the Act. It essentially takes away the right of the murderer’s wife, children, and other heirs to inherit the property of the intestate. If the murderer had been strictly treated as predeceased of the intestate as contemplated in Section 27 of HSA, it would have led to his disqualification strictly, not of his heirs, and therefore, his heirs could have been qualified to inherit the deceased’s property as heirs of the predeceased. In Singaperumal, the wife of the murderer was not allowed to succeed to the property of her intestate father-in-law because her husband had murdered his father. In Smt. Janak Rani Chadha v. State (NCT of Delhi) and Anr., it was held that no right to the deceased’s estate can be claimed through the person who has been disqualified for murdering the intestate. Consequently, the parents of the man who had murdered his wife were held not entitled to succeed as per Section 15 of HSA since they had no independent locus to claim such inheritance. Critiquing The Judicial Interpretation Firstly, the judicial interpretation is contrary to the text of Section 28 of HSA, which provides that, except on the grounds provided in HSA, no person shall be subjected to any other disqualification in inheriting the property on any other ground. However, the interpretation of murderers as non-existent has the effect of disqualifying anyone claiming through them, which is contrary to it since the Act does not specifically disqualify the heirs of the murderer, and merely provides for the disqualification of the murderer. The interpretation extends the disqualification to such individuals who have not been contemplated in the Act. Secondly, it is necessary to conjointly read Sections 25-28 of the Hindu Succession Act, 1956 to deduce the intent of the legislature. The disqualification contemplated in Section 25 disqualifies a murderer, particularly not his heirs, and the disqualification contemplated in Section 26 disqualifies a convert’s children and descendants specifically, not the convert. It reflects that the legislature, in a pinpointed manner, has clearly contemplated whom it intended to disqualify. Further, Section 27 explicitly deems disqualified individuals as predeceased, rather than non-existent or unborn, despite pre-act interpretations of Hindu Law that they are to be deemed as non-existent. It is also notable that Section 28 removed pre-act disqualifications like disease, defect or deformity and restricted disqualifications strictly to those contemplated in the act. It conveys the intention of the legislature that the Act intended to move away from pre-Act broad disqualifications under the Hindu law and wanted to confine disqualifications strictly to those contemplated in the Act. Consequently, by deeming the disqualified as predeceased specifically, not non-existent, it intended to merely disqualify the murderer, not the individuals claiming through him. Thirdly, Section 4 clarifies that the Hindu Succession Act, 1956, purports to be a complete code in matters of Hindu Succession, related to which provisions have been made and thereby enjoys an overriding effect upon prior interpretations of Hindu Law or customs or usages. As observed in Kuppu Alias Kuppammal v. Kuppuswami Mandiri and Ors., “The Hindu Succession Act, in so far as it covers the matters therein, is meant to be a complete Code relating to Hindu Succession and to that extent the Act prevails, and the Hindu Law in respect of it will cease to operate.” However, the reading of “died before the intestate” in Section 27 as non-existent imposes an extra-statutory, pre-act disqualification based on justice, equity and public policy upon the murderer’s act, which is contrary to provisions of HSA. Fourthly, the judgment in Singaperumal placed reliance upon the “principle of justice, equity and public policy” to deem the murderer as non-existent and disqualify his heirs. It was held in Ram Charan v. Sukhram that with the codification of the Hindu Law, the need to place reliance on justice, equity and good conscience has reduced in situations where doctrinal positions under statutes are capable of covering factual situations or where principles underlying the personal law can be definitely ascertained. These principles have a supplementary role. They should be relied upon where a particular personal law does not govern parties, or where such law is silent or it cannot be ascertained, where it contains a lacuna, or where a source of law fails, or it itself requires supplementation. In Rattan Lal v. Vardesh Chander & Ors., it was held that “concept of justice, equity and good conscience which, admittedly, comes into play in the absence of any specific legislative provision.” In Laxmidas Morarji (D) By Lrs v. Miss Behrose Darab Madan, while commenting upon the Hon’ble Supreme Court’s equity Jurisdiction under Article 142 of the Constitution, it was held that the power to do complete justice cannot be used in a manner that ignores express statutory provisions or supplants substantive law. In Mohiuddin and Others v. Appellate Authority for Industrial & Financial Reconstruction and Others, it was held that equity follows the law, not vice versa. What the statute does not allow cannot be done by exercising the equity. The interpretation of Section 25 of HSA in the presence of definite and ascertainable principles, which is contrary to such principles, based on principles of public policy, justice and equity, cannot be construed as a correct approach. Finally, Singaperumal relied on the fact that the HSA’s SOR cited the Privy Council judgment of Channaipa Somasagar to affirm the judicial interpretation in question. It was held in the State of West Bengal v. the Union of India, that the SOR which accompanies a bill cannot be employed in understanding the meaning and effect of enacted statutes’ substantive provisions. Its use is limited to understanding the background and antecedents, and cannot be an aid in the enactment’s construction. It was held in S. C. Prashar, Income-Tax Officer, Market Ward, Bombay and Another v. Vasantsen Dwarkadas and Others, that where statutory language is clear enough, reliance cannot be placed upon the SOR in the interpretation of a statute. In State of Haryana & Anr v. Chanan Mal Etc., it was held that the SOR cannot override what logically flows from the explicit language of the provision. However, Singaperumal relied upon SOR to construct an interpretation which broadens the language of the statute. Conclusion Hence, Singaperumal’s interpretation that murderers are to be treated as non-existent, rather than predeceased under Section 25 of HSA, stands in clear contradiction with what explicitly and logically flows from Section 25 read with Section 27 of HSA. Section 27 clearly contemplates that disqualified individuals are to be treated as predeceased of the intestate, but Singaperumal unnecessarily broadens this position by erroneously relying upon equitable principles and external aids. Such a position is not supported by the language and object of the Hindu Succession Act, 1956. *The Author is a third- year law student pursuing B.A. LL.B. (Hons.) at National University of Study and Research in Law, Ranchi. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*By Abhinav Singh & Tamanna Introduction Child Custody decisions in India are primarily regulated by the Hindu Minority and Guardianship Act, 1956, Guardians and Wards Act, 1890 and other religious personal laws. These Acts assert that the child's welfare comes before the considerations of parenthood and all the other factors. While dispensing justice over custody cases, the courts implement the welfare principle, according to which the child's life's emotional, physical, and educational aspects should be assessed. Drawing on landmark judgements and international treaties such as Article 3 of the UNCRC, Indian jurisprudence is being worked to guarantee the children's all-round growth and development in a stable, nurturing environment. The welfare concept ensures that decisions safeguard the child's welfare by prioritising the child's education, moral upbringing, stability, and emotional and physical health. This principle prioritises the child's welfare over the parents' rights or preferences, highlighting the child's importance in custody decisions. The courts look at several variables to determine what is in the child's "best interests" and prioritise the child's long-term growth and safety. This article examines how the welfare principle is applied in custody disputes, emphasising the standards and procedures that courts employ to determine and preserve the child's best interests. The Application of the Welfare Principle in Custody Cases The Indian courts have consistently applied the welfare principle in all custody cases; courts have consistently ruled that a child's welfare supersedes parental claim. In the case of Gaurav Nagpal v. Sumedha Nagpal, a clear example is cited where it is established that the child’s welfare has been paramount to superseding any statutory parental rights or the desires of either of the parents. Therefore, the child’s future emotional, physical, and cultural upbringing is assured rather than the parent’s legal rights. The case of In re McGrath (1893, 1 Ch.143), which was later affirmed in the Indian case of Ms Githa Hariharan v. Reserve Bank of India, emphasised that the welfare of a child goes beyond mere financial support; it also embraces moral, emotional, and even spiritual welfare. This expands the scope of welfare in a broad sense, beyond pure physical or economic realisation to include within it the holistic development of the child. Similarly, in the case of Purvi Mukesh Gada v. Mukesh Popatlal Gada, the apex court again referred to the fact that the principle of welfare has to be of all-time highest value when giving weight to any other factors that are relevant in any battle of custody. Moreover, under this principle, courts look for various factors that determine a custody decision, and at the top of these factors stand the child’s age, health, and emotional ties and the parent's ability to maintain a healthy environment. In a couple of cases, courts, as is clearly stated in the case of Purvi Mukesh Gada, have emphasised that where any parent cannot always provide consistent moral, emotional, and physical support, it has often been damaging to the child. This can be seen more emphatically in the case of child custody, as in Gaurav Nagpal, where it was held that sometimes, any parent is not suited to provide the environment that the child requires for growth. This was a reiteration of the earlier position taken and laid down in Smriti Madan Kansagra v. Perry Kansagra, which stated that the child’s welfare is the sole and paramount criterion. Welfare often dominates in cases of child custody. The court further said that regarding the question, which would always precede it, when this very question concerning custody comes before it, it should not decide on the legal rights of the parties but on the "sole and predominant criterion of what would serve the best interest of the minor." The case also reminds us that the child's nationality is an essential factor to consider. However, the recent case of Lahari Sakhamuri v. Sobhan Kodali lays out factors for courts to consider in terms of custody cases, such as maturity, mental stability, character, financial sufficiency, community involvement, access to education, and the parent-child relationship, which is best for the child. Analysis of the Welfare Principle Judicial interpretations demonstrate that the focal point of the welfare principle is to promote the child's best interest, which essentially entails fulfilling a twin-pronged objective. Firstly, ensure the best environment for the child's development, with the child’s best interest taking precedence over any other factor. Secondly, the public interest associated with the child's proper upbringing should be considered. As the child represents the nation's future, public welfare hinges on their proper upbringing, as emphasised by the Hon’ble Supreme Court in the case of Vivek Singh v. Romani Singh. The authors contend that the welfare principle has stood the test of time in ensuring the child’s emotional, physical, and educational well-being, based on the judicial interpretation by the courts, consistently upholding the needs of the child over any other right, along with an ever-expanding list of factors which the court takes into consideration while deciding such custody cases has ensured that whatever action is taken is taken in the best interest of the child and their development. Hence, it has stood the test of time and consistently evolved to address any emerging concerns. Interplay Of Joint Custody Approach with The Welfare Principle While the ideal scenario at the time of the separation of the parents is joint custody to ensure the welfare of the child, providing both parents with an opportunity to look after the child is not always feasible. Many arguments favour adopting shared parenting as a usual practice in India. The Law Commission of India, in its 257th report, provided insight into the concept of shared parenting and suggested amendments to laws regarding joint custody. According to the Law Commission report, two models of shared parenting exist in India. One is shared responsibility parenting, where the parent not granted custody still shares economic and decision-making responsibility. The other is shared access parenting, wherein the non-custodial parent still has physical access to the child, who lives with both parents at alternating intervals, and the child’s responsibility is borne by the parent who has custody at that time. It is essential to recognise the significance of shared parenting or joint custody for the sustainable growth of a child. Courts should grant joint custody in cases where it is feasible. However, there should not be a presumption of joint custody; numerous factors could compromise the welfare principle if joint custody is awarded. For instance, if one of the parents has a history of domestic violence and abusive behaviour, allowing the child to stay with that parent could have severe psychological and, in some cases, physical repercussions. When addressing custody matters, the courts should assess whether denying such parents rights to the child's custody is necessary. Conclusion The welfare principle is a cornerstone of child custody decisions in India, attempting to prioritise the child’s best interest over parental rights or any other preferences. The courts have applied this principle, considering a range of factors, including the child’s emotional, physical, and educational well-being; this ensures that an informed decision is taken regarding the child’s custody. The principle has evolved to encompass a holistic view of child welfare, extending beyond financial considerations to include many other important aspects. While joint custody is beneficial, courts must assess their feasibility in each case to ensure the same is in the child’s best interest. The Law Commission of India's recommendations in its report on the shared parenting model also reflects a growing awareness of the need for a more nuanced approach to custody regimen in India. However, we believe that joint custody matters should be looked upon in the future, primarily focusing on the child's benefit. Ultimately, the welfare principle's adaptability and child-centric focus have enabled it to remain relevant and effective in addressing the complex challenges of modern custody disputes. *Abhinav Singh is a fourth-year law student pursuing a B.A. LL.B ( Business Law Hons.) at the National Law University, Jodhpur. *Tamanna is a second-year law student pursuing a B.A. LL.B (Hons.) at National Law University, Jodhpur. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Yutika Jain Introduction The tort of alienation of affection (AoA), also referred to as ‘heart balm action’, is an Anglo-Saxon common law tort which based action against third parties guilty of tortious interference with the marital relationship. Typically, a heart-balm action is a civil remedy where the aggrieved party seeks monetary compensation for the termination or disruption caused to their romantic or marital relationship. The essence of the tort lies in intentionally enticing or influencing one spouse to abandon the affection, companionship, and support owed to the other. The aggrieved spouse may seek monetary damages for the emotional distress, humiliation, or loss of marital happiness suffered due to such interference. The objective behind the damages is to preserve marital harmony by deterring wrongful interference, and saving the marital tie. The law imputes that since the spouses have a valuable interest in the married relationship (such as, marital intimacy, companionship, support, mutual affection, welfare of children etc.), the marriage ought to be protected against any such third-party interferences. The Apex Court in Indra Sarma v. V. K. V. Sarma, observed that where a woman knowingly develops a relationship with a married man, and encourages the bigamous relationship, such conduct amounts to commission of an intentional tort, i.e. interference of a third party in the marital relationship by alienating the husband from his spouse and children. The Court noted that such interference results in loss of marital companionship, consortium, and spouse’s familial association, and therefore, a cause of action lies with both, the wife and children. The Court however restricted its view in assessing AoA as a standalone tort/ settled cause of action, and demanded legislative interference to address the same. Through providing monetary damages, the tort seeks to balance two compelling interests; firstly, to protect the sanctity of marriage and aggrieved spouse’s emotional interest and secondly, to not treat the spouse as a property. Elements of the Tort For a person to be guilty of AoA, the following essentials must be met: Firstly, the spouses must be under a legally valid marriage, with genuine companionship, intimacy or consortium. Where the marital tie was already affected by instances not associated with third party’s interference, or parties lacked genuine affection or companionship between each other, no action for AoA shall be successful. Secondly, there must be a third-party’s ‘intentional and wrongful interference’ in that marital relationship (for example: cultivating a relationship with one spouse knowing that it will affect the marriage, encouraging separation from spouse etc.). The Supreme Court in Pinakin Mahipatray Rawal v. State of Gujarat, observed that “A person can be held liable for the action of alienation only when there is any active participation, initiation, or encouragement on the part of the Defendant.” Acts leading to the loss of affection must be wrongful, designed and deliberately calculated in a manner to entice the affection of one spouse away from the other. However, if the spouse’s conduct is completely voluntary and uncoerced, the third party shall not be liable for the acts (i.e. alienation resulting because of consent is a complete defence). The action for AoA does not require proof of adulterous conduct, any proven intentional interference in the marital relationship is sufficient for the suit. The Plaintiff is not required to show Defendant’s intent to destroy the marriage; merely establishing the malafide intent to interfere is sufficient. Thirdly, there must be a causal link between the interference and the loss of the marital relationship’s affection. The respondent’s wrongful conduct must be the primary reason for the alienation; it must be established that the spouse withdrew himself emotionally or became distant. For a successful prosecution for the tort, there must be an evident loss of marital relationship, companionship, assistance, and consortium for the couple. Additionally, there must be compelling evidence that the third party actively participated in, initiated, or encouraged the alienation, such that they played a substantial role in inducing or causing one spouse to lose the affection of the other. Mere association, or liking as such do not become tortious. An action for alienation of affection can be brought for all improper intrusions on the marriage by another, including, but not limited to extramarital sex, spouse’s continued overtures or sexual liaisons, etc. The liability arises only when the defendant has actively participated in, initiated, or encouraged the conduct in question. The Delhi High Court in the recent case of Shelly Mahajan v. Ms Bhanushree Bahl & Anr took a progressive stance of the tort. Here, the wife, (Plaintiff herein) was married to the husband (Defendant 2) and they had twin children. Defendant 1 joined the same venture with Defendant 2 and despite being aware of the marital relationship, she developed a close and personal bond with the Defendant. It was found that Defendant 1 frequently visited their marital home, accompanied Defendant 2 on work trips, and even became his exclusive travel companion, causing the Plaintiff serious apprehensions. The Court here applied the Hohfeld’s analysis and noted that if a spouse has a protectable interest in the marital consortium, the third party has a legal duty to not intentionally and wrongfully interfere with that relationship. (Hohfeld’s analysis states that if a person has a right over something, the other has a correlative duty to act or refrain from acting in a certain way.) Lacunae The tort of Alienation of Affection has an evolving jurisprudence in the Indian legal system. The Shelly Mahajan case was the first case where damages were awarded only on the basis of the tort, not coupled with any other marital offence. The tort primarily assumes that the affection between spouses can be ‘stolen’ or ‘enticed’ by a third-party, which is contrary to the realistic scenario where affection is voluntary and inherent. It ignores to consider the fact that the marriage may not be alienated solely by action of a third party without any consent (whether express or implied) on part of the spouse. Further, by using words such as ‘third party’s interference’ or ‘incitement by third party’, the law disregards the decisional autonomy of Defendant spouse. The Defendant spouse, not being a minor, is legally eligible to make informed decisions for himself, and in such cases using the tort as enforceable only against the third party disregards the plausible knowledge and intention that the Defendant spouse may possess while participating in any such acts. Moreover, through imposing pecuniary damages on the Defendant, it forces people to continue in unhappy marital ties which has an effect of discouraging separation in an instance where the marriage has broken to the extent that one of the spouse is already alienated to the marital tie and rather connected with a third party. Further, the nature of remedy sought by an action of AoA is merely compensatory. By allowing monetary compensation for commission of acts so gravely prejudicial to the spouse, the Courts reduce the sanctity of the marital tie. Companionship and affection would be seen as quantifiable legal goods and the marital tie shall be reduced not to a sacred relationship, rather a Court-bound forcing. The tort may as well, disproportionately affect women. In patriarchal societies like India, where only the third party is held liable, women may be selectively targeted in lawsuits exposing them to further social stigma and reputational harm. There may be instances of misusing the tort vindictively against the vulnerable spouse as a means of extracting money in the name of damages. Since there are no standard guidelines or directions specifying what does or does not amount to commission of the tort, the Courts may be slugged in several vindictive suits filed merely out of greed and not genuine affection. This could lead to a shift in the actions for tort being towards vendetta legislations, which are socially corrosive. Further, the damages are awarded according to the ‘harm suffered by the other spouse’, which is difficult to assess. The level of mental cruelty inflicted on spouse because of any such act of the Defendant spouse may be difficult to assess. What may be acceptable to some, may not be acceptable to others. The monetary compensations thus being awarded can be arbitrary and unjust. Since the Apex Court has not yet dealt with the matter in full course, no clear directives binding on all Courts are available. The High Courts on their own interpretation seek to resolve the disputes which leads to lack of uniformity. Suggestions Firstly, the author suggests expanding scope of the tort to cover not only valid marriages but also voidable marriages and live-in relationships where parties share genuine intimacy and affection towards each other. Mental cruelty has been defined as such a conduct by the spouse which inflicts upon the other spouse such mental pain and suffering which would make it impossible for the parties to live together. In Shobha Rani v. Madhukar Reddy, the Apex Court held that “Where the conduct complained of itself is bad enough and per se unlawful or illegal, the impact or the injurious effect on the other spouse need not be enquired into or considered.” With this regard, commission of alienation of affection, itself being prejudicial to the marital tie and the petitioner spouse, subjects the spouse to mental cruelty. The other spouse may be subject to mental agony and stress on discovering the extra-marital conduct of the Defendant spouse. Further, if any spouse is found guilty for the tort, it is clear that the marital bond has or shall fail in some due time. The tort, though not completely alike, but is similar to adultery. While torts like romantic relationship without sexual intercourse, flirting, Alienation of Affection are categorised as non-adulterous infidelity, Adultery can be regarded as a higher degree of infidelity. Section 13(1) of the Hindu Marriage Act recognises divorce on fault grounds. Adultery being one of such grounds has been recognised but non-adulterous infidelity including emotional infidelity, flirting, alienation of affection etc., which do not involve any sexual intercourse but cause serious prejudice to the marital bond has not been recognised per se. The author suggests inclusion of such non-adulterous infidelity as offences against marriage with grant of matrimonial reliefs and not mere pecuniary damages. The author suggests that Courts must employ principles of equity to balance the conflicting interests of both the spouses. It is suggested that only granting pecuniary damages further creates a class within the society where the rich can easily abuse the marital sanctity by engaging in non-adulterous infidelity and escaping the same by dispensing off some monetary compensation. Such a practice inherently violates our core social and moral values and would degrade the society. Lastly, the author suggests expanding the definition of Alienation of Affection, with proper directives as to what exactly constitutes such commission, and its interaction with other matrimonial offences. There must be a clear stance on controlling vindictive suits against a particular class or group of people to avoid misuse of the remedy. Conclusion The tort of Alienation of Affection represents a significant yet contentious shift in Indian matrimonial jurisprudence, attempting to address emotional harm caused by intentional third-party interference in marital relationships. Its adoption from common law jurisdiction in Indian legal system however, has occurred without sufficient adaptation to existing matrimonial laws, social realities, and constitutional values of autonomy and equality. While recent judicial developments reflect a growing recognition of the protectable interest spouses hold in marital consortium, the application of tort remains debatable. Its reliance on monetary compensation neither adequately captures the nature of emotional loss nor effectively safeguards the marital bond. Rather, it may inadvertently commercialise marital fidelity and encourage vindictive litigation. The absence of clear standards governing parties’ intent, causation, and assessment of damages renders the tort susceptible to arbitrariness and misuse. By fixing liability primarily on the third party and offering only compensatory damages, the tort fails to address the core cause of marital breakdown; alienated spouse’s conduct, which not only diminishes individual agency but also risks moral policing and selective targeting, particularly of women. Thus, comprehensive legislative/ judicial action is required for the tort to serve a legitimate purpose; its scope must be clearly defined, misuse strictly controlled, and its interaction with matrimonial remedies must be properly addressed. Such clear guidelines are necessary to prevent abuse and ensure uniformity. More importantly, integrating non-adulterous infidelity and alienation of affection within the framework of matrimonial reliefs rather than confining them to tortious liability would better align legal remedies with societal standards, and moral considerations. Without such reforms, the tort risks becoming an instrument of retaliation rather than a principled mechanism of justice. *Yutika Jain is a second year student pursuing B.B.A. LL.B. Hons from Integrated Law Course, Faculty of Law, University of Delhi. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Shantanu Shastri Introduction The idea or the institution of marriage can be traced to religious conservative thought universally across major jurisdictions. Marriage as an institution, on a broader basis, has lacked the provision for divorce. Talking about marriage in Christendom, W. Friedmann, in the book ‘Law In A Changing Society (1959) ’ highlights the position that marriage creates permanent moral and legal bond that cannot be ended with human will and law, and the state lacks the authority to terminate it. Conservative notions of marriage centred around procreation as a purpose of marriage, and because the state has a vested interest in managing population, ultimately, marriage came to be as an institution of social control regulated by the state. Michel Foucault, in his work The History of Sexuality, Volume 1,-highlights how the state invested in ‘family planning’ to achieve the objectives. The ‘sanctity of the institution of marriage’ question answered in Joseph Shine Petitioner(S) v. Union Of India (S). is a culmination and manifestation of this biopolitics that plays in the background. A genealogy of this ‘marriage’ was floated to de-elevate it from its pedestal of sanctity. Modern jurisprudence affords space to plurality and de-hyphenates marriage from procreation, relegating it from the lens of ‘need for maintenance of the state’ to the domain of privacy. This dilution of biopolitics ultimately dilutes the sanctity flavour, as the latter is a function of the former. The family one chooses is valued more and is sought to be treated differently from the family one is born into. This biopolitics of marriage is common across all religions, and the differences in the nuts and bolts are superficial. This built-up helps us understand the reason behind hesitation in liberalisation of divorce laws, as the state here does not remain merely as a tool of expression of a certain interest group, but itself becomes a player in the chess of conflict of interests. Fault-Based Grounds A decree of divorce, under the Hindu Marriage Act, is granted under section 13, on fault-based grounds such as adultery, cruelty, desertion, conversion to another religion, amongst others. The idea is to give a spouse the right to break away in case of certain actions by the partner, following which the spouse can’t be reasonably expected to cohabit with the partner. The proceeding takes the form of a civil case, and establishing the partner's guilt is a necessary condition for obtaining a decree of divorce. The case usually lasts for two to five years, excluding the period during which appeals are pending in the high courts or the Supreme Court. Needless to say, categorised as in-persona, no case lies if the spouse does not wish to pursue the cause and wants to continue cohabitation. In scenarios where no one is really at fault, apart from convincing the spouse for a mutual divorce under section 13B(1), failing which, divorce under faulty-based grounds is the only option left for single partner who wants to break away leading to mess, ugliness, adversarial litigation in family court rooms as spouses frame cases assigning blame which leads to contentious proceedings, increased delays and emotional distress as indicated by 71st Law Commission Report in 1978, and the same was highlighted in 217th Law Commission Report in 2009. Interestingly, both reports fell short of acknowledging the need for unilateral no-fault divorce and stretched the argument only for the need to recognise the irretrievable breakdown of marriage as a ground of divorce. Mutual Divorce Mutual Divorce was introduced as a ground of divorce under section 13B (1) in the Hindu Marriage Act in the year 1976, for providing a mechanism to both parties to separate amicably, but it does not cover situations where one party refuses to cooperate and fails to address the realities of modern marital breakdowns. Before filing for mutual divorce, a one-year separation period requirement needs to be fulfilled by the parties, which can be waived off only in cases of exceptional hardships under section 14(1),depending upon the facts and circumstances of the case and not otherwise in the usual course of things, as held recently in the case of Shiksha Kumari v. Santosh Kumar. The Delhi High Court further ruled that courts have the power to waive of cooling period under section 13B(2) for filing the second motion and that waiver under section 14(1) does not bar waiver under section 13B(2) but the waivers are not a matter of course and can only be granted as per parameters laid down in the case of In Re Pooja Gupta and Anr. v. Unknown. Here too, the timeline seems long for the one-year-plus-six-month period is further prolonged by court delays and adjournments. Though the sanctity factor seems dissolved to a great extent, it still manifests in procedural requirements where the state wants to nudge individuals into making ‘better decisions’ by mandating separation and a cooling-off period. Such requirements are a necessary evil, even if they undermine and question individuals' autonomy and agency, and, for a while, there is a choice to opt for mutual divorce. The state tries to convince individuals to make a ‘rational’ choice, but it is also necessary, as a safety check, to prevent in angst. However, the need for unilateral no-fault divorce stays intact, for even the ‘mutual’, as the name suggests, takes the liberty away from a single partner if one chooses to break away. Irretrievable Breakdown of Marriage Article 142 in Constitution of India provides that the Supreme Court may pass such a decree/order as is necessary for doing ‘complete justice’. Using the powers under this article, the Supreme Court established ‘irretrievable breakdown of marriage’ as a ground in the case of V. Bhagat v. D. Bhagat (Mrs). which was not left overbroad and vague and was held to mean marriage being ‘dead beyond salvage’ and serving no social purpose. Since it’s not a statutorily recognised ground, cases begin in lower courts only on fault-based grounds and only in appeal due to lack of evidence, on a case-to-case basis, acquire a breakdown flavour depending upon the discretion of the court. The rarity is further highlighted by the fact that only the Supreme Court has the power to grant a decree on the basis of irretrievable breakdown. The Supreme Court in the case of Naveen Kohli v. Neelu Kohli urged the parliament to statutorily introduce the breakdown ground, which has yet to be done by the parliament. From the V Bhagat case in 1994 to the Kohli case in 2006 to Shilpa Sailesh v. Varun Sreenivasan in 2023, a consistent rule was expressed that prolonged separation is required as an evidentiary standard and a proof of irretrievable breakdown because it needs to be established as a ‘social fact’ and not a subjective feeling. The court wanted to avoid Article 142 becoming a source of divorce on demand. When it comes to the timeline, typically five to ten years of separation is treated as conclusive and shorter periods require exceptional facts. Given court delays, adjournments, and the fact that such power under Article 142 can be exercised only by the Supreme Court in exceptional cases and circumstances, the timeline usually stretches to more than ten years. Hence, after carefully analysing the available mechanisms of divorce, one can easily conclude that getting a divorce under the Hindu Marriage Act is a herculean task and effectively, a person once married stands stuck in the absence of mutual consent and fault of the partner. Such a situation needs to change, given the liberal, autonomy and privacy-based claims of a liberal democracy like India. The proposal for unilateral no-fault divorce As per the logic of liberal rights, every right can be traced back to a larger set; tracing back must be the norm, and creating a different set is permissible only if a trace is not possible. There is a difference between recognising and applying a right. When a constitutional court declares a right, it's merely recognising what was already applied. The recognition of the right to privacy as a facet of the right to personal liberty in Justice K.S.Puttaswamy(Retd) vs Union Of India in 2018 created a new sub-genus, which leads to a whole new set of subspecies rights waiting to get recognised. The right to personal liberty was said to include the right to autonomy, leading to the right to privacy, which further includes fulfilment of marital obligations as a personal choice, as per Joseph Shine v. Union of India. These two landmark judgments help explore the spectrum of ideas about marriage from a new perspective, thereby shifting the Overton window on divorce. Countries such as Canada (one year separation period required), China (30 days cooling off period after initial application), Spain, Sweden, England & Wales (twenty-week reflection period), Malta, and Russia (one month waiting period) recognise unilateral no-fault divorce without requiring the spouse to establish guilt. Once the right to privacy and autonomy is acknowledged, the need for the partner to prove fault in pursuing divorce seems irrelevant. Privacy is not just spatial; it also includes decisional autonomy. The fact that a partner does not wish to continue the marriage should be sufficient for a divorce decree to be granted. The requirement of the law to establish fault, to convince the partner of mutual divorce, or to make the marriage dead beyond salvage and open the doors to irretrievable breakdown as the only ways to get a divorce is a negation of the privacy and decisional autonomy of the individual trying to break away. The state wants to control what constitutes a ‘good enough’ reason to break away, and such a paternalistic, conservative approach is incoherent and inconsistent with the changing marital jurisprudence post Puttaswamy and Shine. The law must acknowledge the dynamics of the changing society, and ‘divorce on demand’ must be embraced. Accepting the ‘institution of marriage’ argument opens floodgates in a range of issues, including settled issues of adultery, and pending issues such as same-sex marriages, and marital rape, where the thrust on this notion to be delegitimised is increasing and has seen widespread scholarly support, amongst others. This is not to argue that there should be no period of separation or cooling-off period in case of a unilateral no-fault divorce but to argue that at least there must be such a mechanism in the first place at the very least. In a way, the seeds of unilateral no-fault divorce are already sown when one argues about the unconstitutionality of section 9 in cases like T. Sareetha v. T. Venkata Subbaiah and the pending Ojaswa Pathak v. Union of India (WP(C)250/2019) because it’s just a matter of degree of stretching the same idea . If the argument advanced is that forcing an individual who has deserted without reasonable cause can be a ground for divorce for the spouse but not a ground for the state to force the individual to cohabit, as it is a violation of personal liberty, there should be no hesitancy to stretch this argument to advance the need for unilateral no-fault divorce, with enough safety checks. Conclusion When there is a recognition or change in the genus right, it inevitably has a domino effect on the specie rights of varied nature. Recognition of a right via judicial interpretation is not an exercise in silos, but in fact a change in a part of the greater whole. The Supreme Court seems to be great at recognising genus rights, but when it comes to engaging with the domino effect, it is dismissed as a slippery slope or as far-fetched in the name of issues falling within the legislature's domain, practically leaving citizens to live, in a state of duality. When marriage itself is recognised as a personal choice, the interest of one spouse to continue marriage should not be protected as a right at the cost of the privacy of the one who wants to break away, and no one apart from the individual should have a say in what is a ‘good enough’ reason for a divorce. The society changes even if the law doesn’t. In fact, not having such a mechanism of divorce is creating more problems than it solves. *The Author is an Assistant Professor of Law in Prestige Institute of Management and Research, Indore. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Udit Jain & Ruhee Tandan Recently, the Gujarat government proposed an amendment to the Gujarat Registration of Marriages Act, introducing a stricter multi-stage verification process. The mandate stipulated that the couple seeking to register their marriage must submit their parents' identity documents and declare that they have informed their parents of the marriage. The proposed amendment, in the light of already established constitutional jurisprudence, appears to be a constitutionally dubious proposal. The proposal established an obligatory requirement that children obtain parental consent to marry. There is established jurisprudence to the effect that there is no requirement of parental consent to marry; the Gujarat proposed amendment and the reasoning behind it stand constitutionally anomalous. The proposal reflects and augments the already existing socio-religious discrimination in Indian society. The recent initiative of the Gujarat government escalates the already existing religious and caste disharmony that exists in Indian society. While there have been efforts to develop schemes to promote interfaith marriages and thereby foster social harmony, the particular decision undermines that spirit. The decision also reflects the legitimisation of religious bigotry, such as “love jihad”, as observed in the speech of the minister introducing the proposed amendment. While introducing the bill he stated that ““under the name of love jihad, a game is being played in the state” and “a strong armour… needs to be created for young girls” While there have been established judicial precedents that evidently stipulate that the consent of clan family or parents stands superfluous, the decision, as argued here, stands constitutionally unsound. Building on the articulated argument, this article seeks to highlight the socio-legal issue posed by this decision. The article, firstly, looks into the background of the “proposed decision” and then further manoeuvres into the constitutionally established jurisprudence on the right to choose. The article then further manoeuvres into the socio- legal reality of honour killings and demonstrates how this judgment exacerbates the existing problem by granting the clan authority to decide for their children. Thus, this article examines the consequences of paternalism and the constitutional flaws of the decision. The article delves into the intricate debate between constitutional morality and social morality. The article ultimately concludes with a practical, more just and constitutional approach that could have been taken. Marriage in India: A Historical Legal Transformation Classical Hindu law treated marriage as a religious duty rather than a civil contract. The sanctimonious nature of the marriage disparaged the requirement of consent and focused on the sanctity of the ritual. The father or male guardian of the bride held near-absolute authority over the bride, which was treated as a gift to the groom as part of the kanyadaan ceremony. Women, under this framework, were not considered independent subjects capable of independent consent. Progressive interpretations of Muslim personal law, which granted women autonomy, though present, were rarely followed in practice, giving way to a more conservative tradition. The Special Marriage Act, 1954, was the first statutory measure towards a consent-based framework for marriage. Under Section 4 of the SMA, individuals of any religion may marry without the sanction of personal law and without caste or religious restrictions. However, there were still many procedural requirements, such as the thirty-day notice period mentioned in Section 5 of the SMA, which exposed couples to harassment and functioned as a parental veto. Various scholars and academics have argued that this notice regime disproportionately harms interfaith couples and women. For instance, Mrinal Satish noted that procedural exposure increased the risk of honour-based violence.(Read - How the Special Marriage Act is Killing Love) The jurisprudential shift relied heavily on Article 21 expansion. The first major recognition of inter-caste marriage autonomy was upheld in the case of Lata Singh v State of Uttar Pradesh. The judgment held that inter-caste marriages were propitious to the indian social harmony, and those who are involved in the daunting act of honour violence on the premise of inter-caste marriages shall be severely punished. The court (see p. 16) also stated that if parents disapprove of the marriage, they can, at full capacity, sever the social relationship between them. Thus, this judgment evidently established that parental consent to marry is irrelevant and is against the constitutional right to choose. It was further supported by Shakti Vahini v. Union of India, in which the Supreme Court expressly condemned the authority of khap panchayats and family bodies to dictate matrimonial choices and held that such authority was not legally cognisable. In the case of Arumugam Servai v. State of Tamil Nadu, the court strongly condemned khap panchayats and caste councils for interfering with marriages. The judgment of KS Puttawamy (para 298) manifestly illuminates that privacy includes decisional autonomy in intimate matters. Furthermore, in the landmark judgment of Navtej Singh Johar v Union of India, it was laid down that sexual orientation and choice are rooted in dignity. Progressive interpretations of Article 21, Right to Life and Personal Liberty, have led to the recognition of the right to choose a life partner as a Fundamental Right under Article 21. In Shafi Jahan v K.M Ashokan(para. 45), the court overruled the High courts annulment of an interfaith marriage on paternalistic protection grounds. In parts of Gujarat and Northern India, social stigma against marriage crossing caste and religion remains strong, occasionally resulting in community backlash or threats to couples, as seen in recent threats against an interfaith couple in Surat. The Gujarat government's recent proposed decision is rooted in the paternalistic model of governance, where the state, excessively in the guise of protection of women, has chosen to overlook the personal autonomy and dignity aspect of women. The amendment reflects demands from community organisations in Gujarat, where some village bodies have even imposed a social boycott on couples marrying without family approval. Some other laws, such as the UP Prohibition of Unlawful Conversion of Religion Act 2021, shared the same vision. While the marriage in India has always been linked to concepts of caste continuity, religious identity and family honour, this decision serves as an alignment with the conservative vote base and retrogressively reinforces community control structures. The Right to Choose: Marriage, Caste, and Constitutional Liberty in India The right to choose a marital partner, while seemingly just a question of personal liberty, cannot be adjudicated in isolation from the specific social realities of gender, caste and religion in the Indian framework. These hierarchies determine which choices are systematically and violently suppressed. Thus, the suppression of the right to choose is both the suppression of the right to life and personal liberty under Article 21, as well as a form of discrimination based on caste and gender. In his essay, Annihilation of Caste, Dr B.R. Ambedkar argued that inter-caste marriage, in particular, along with inter-caste dining was one of the ways of eradicating the caste system (see). He stated that: “Where society is already well-knit by other ties, marriage is an ordinary incident of life. But where society is cut asunder, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking Caste is intermarriage. Nothing else will serve as the solvent of Caste.” Furthermore, in the case of Shafin Jahan v. Ashokan K.M., the Supreme Court highlighted the right of every individual to marry a person of his or her choice. This also ensures that the choice of a partner is not influenced by religion or faith. In this case, although the family initiated a habeas corpus writ, the Supreme Court held that it could not interfere in this matter. This landmark judgement nullified the Kerala HC’s decision, which stated that parental permission was a necessary component of marriage. Thus, the right to choose a life partner is a fundamental right of a person and is protected under Articles 21, 19(1)(a) and 14 of the Constitution, as held in the case of Shakti Vahini v. Union of India. Interference in such a choice constitutes an encroachment on the freedom of choice of an individual, and thus parental and community consent in such a decision is not a necessary component. From Honour to Law: Re-Legitimising Community Control Honour killings in India don't exhibit incidents of interpersonal violence but are stark manifestations of deeply entrenched social hierarchies, legitimised through patriarchy, caste supremacy and communal dominance. The honour killings official data remains low, due to its structural invisibility, which means many cases go unrecorded as such. The official data indicates that there are at least 30 cases of honour killings every year, and these honour killings are a direct reflection of existing patriarchal norms and caste and community boundaries pervasive in Indian society. The Gujarat proposed amendment shares its affinity to such paternalism and serves as the most blatant attempt to control the choice, sexuality and autonomy of the young people. It is unfortunate to see that the ruling government and the leaders have tried to justify such an unconstitutional decision by citing it as an attempt to obliterate love jihad. While the Indian courts have persistently declared the concept of “love jihad” as a legal basis to override an adult’s fundamental rights to marry, the indian state and some of the most popular leaders have often used this to satisfy their voter base. In the landmark judgment of Shafin Jahan v Asokan K.M, (para 28)the Supreme Court declared that a marriage cannot be annulled on stereotypical fears devoid of evidence, and that an adult has the unmitigated right to choose their spouse. The Bombay High Court has also held that “just because boys and girls are from different religions, it's not from love jihad.” The apex court in Re vs Indian Woman said that it's the duty-bound role of the state to protect freedom bound choice of marriage, which is an integral aspect of Article 21 of the Indian Constitution. In the case of Vikas Yadav v. State of Uttar Pradesh and others, the court reiterated that the freedom and independence of women cannot be violated by self-imposed honour. When a state policy seeks to reintroduce parental notification or community oversight in adult marriage, it risks legitimising the very social control structures that the courts have sought to dismantle. Thus, by formally empowering families to intervene, such measures may embolden honour-based resistance, increase surveillance of couples, and create conditions where coercion or violence becomes more likely, thereby indirectly reinforcing the ecosystem in which honour killings thrive. Paternalism, Constitutionalism, and the Limits of Social Morality Women have perpetually faced systematic discrimination throughout modern history when compared to men. This interference and evident discrimination have been justified as a protection of their own rights or “ for their own enhancement”. Dworkin defines paternalism as the interference by a state or an individual with another person, against their will, and justified by the claim that the person interfered with will be better off or protected from harm. Indian family law is closely linked to religious codes and social morality. Such instances of subjugation are ubiquitous in almost all personal laws of India. The feminist critique of paternalism rests on the fundamental recognition that women are autonomous agents capable of making informed decisions about their own lives. The critique rebuts the thesis that there is a singular, uniberal understanding of what constitutes women’s dignity, equality, or freedom. In the controversial Sabrimala case (para 112) Justice Chandrachud endeavoured to undermine the value of the “essential religious practise test”, and rather adopted a version of an “anti-exclusionary principle”. This reflected a progressive shift away from the normative traditional laws that accorded supremacy to morality over constitutionality. However, a distinction should be made between paternalistic and judicial overreach. In the context of the recent proposed amendment, when courts validate or entertain parental objections to adult relationships on grounds of safety or social harmony, they treat adults as incapable of making autonomous marital decisions and shift authority from the individual to the family. Indian jurisprudence has evolved constantly and reflects a commitment to transformative constitutionalism rather than a disposition toward social morality. While the Indian society still struggles sociologically with honour killings, khap panchayat interference and family surveillance of women, the proposal reflects entrenched socio-legal paternalism. The proposal leans into the past, carrying personal laws years backwards on the reluctant tide of retrogression. Towards Constitutional Pragmatism: Reconciling Social Anxiety with Transdormative Morality The debate surrounding the proposed amendment at length speaks about a deeper anxiety that exists in the Indian society, a state of despair stuck in the intricacies of caste continuity, religious endogamy and patriarchal controls. But through this piece, we contend that the shocks of social discomfort cannot dictate constitutional decisions and adjudication. As the founding father of our constitution, Dr B.R. Ambedkar stated, “The constitution is not a mere lawyer’s document, but it's a vehicle of life and its spirit is always the spirit of the age ” the Indian constitution should be pictured as a figure of social transformation. As discussed previously in the piece, and from the discourse affirmatively established in judicial precedents. Individual dignity, decisional autonomy and privacy are not predicated on family approval. But a purely absolutist framing might also not serve as a propitious framework, as there have been genuine concerns regarding religious coercion or fraudulent inducements in certain matrimonial contexts. Pragmatism surfaces in strengthening institutional safeguards that protect choice without controlling it. Instead of mandating parental consent, the State could invest in neutral counselling mechanisms, safe-house infrastructures, and expedited police protection protocols for consenting adults facing credible threats, measures already contemplated in Shakti Vahini. Procedural reforms to the Special Marriage Act, specifically in relation to the 30-day notice, would conform to constitutional morality. The state must act in accordance with its positive obligations under Article 21 to protect life and liberty without regressing into paternalism. The debate between social morality and constitutional morality is neither novel nor easily resolved. However, Indian constitutionalism, through repeated judicial pronouncements, has privileged dignity over majoritarian sentiment. A balanced constitutional approach lies in reinstating that marriage between consenting adults remains a matter of individual choice while simultaneously strengthening protective mechanisms against coercion and violence. A balanced approach rooted in pragmatism would neither romanticise social morality nor dismiss it recklessly, but would be situated in a commitment to the constitution. The constitution was conceived as a transformative charter, not a conservative compromise. To privilege clan consent over adult choice would be to invert that vision. *Udit Jain is a third-year law student pursuing B.A. LL.B (Hons.) at National Law University, Jodhpur. *Ruhee Tandan is a first-year law student pursuing BBA LL.B (Hons.) at National Law University, Jodhpur. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.