*by Shivansh Singh This blog is a part of a special two-part issue. Stay tuned to read the next instalment of the blog. Introduction In 2022, Singapore, through the judgment of Janesh s/o Rajkumar v Unknown Person,  officially recognised the proprietary rights of NFTs. This legal recognition of NFTs is a natural first step in incorporating digital assets into the evolving economic framework of global property rights. However, this judgment also raises a pertinent question about the modalities of inheriting these digital assets, if they are to be treated as conventional properties. The engagement with this aspect of inheritance is largely lacking in India, where digital assets remain mostly unregulated by the Indian Courts and parliament. The rise of digital assets, such as cryptocurrencies and non-fungible tokens (NFTs), has reshaped the concepts of property, ownership, and wealth in contemporary times. In India, this change is being implemented within a legal regime of inheritance based on conventional concepts of physical property, particularly under the Hindu Succession Act, 1956 (hereinafter referred to as the HSA). NFTs and other distinct blockchain-authenticated digital tokens now form a considerable portion of wealth for many. Yet, the legal nature of such assets is uncertain, particularly in the context of inheritance and succession. Therefore, the first part  of this article explores this critical gap by first understanding NFTs and other digital assets in the Indian context, followed by examining how far NFTs and other digital assets are included (or excluded) in (or out of) the current Indian inheritance regime. Considering that a significant portion of the inheritance matters in India is governed by the HSA, the article shall carry forward this discussion to the same extent. The second part  of the article highlights the challenges deterring the adoption of NFTs in the Indian inheritance regime, following which it examines the fractionalization model of digital assets and delineates its utility in Indian inheritance law. In the concluding section, the article provides ancillary recommendations to address the policy gap.  Understanding NFTs And Digital Assets In The Indian Context A non-fungible token (NFT)  is a type of cryptographic asset used to verify digital ownership of unique assets. NFTs provide a secure record authenticated with a unique identifying code stored on the blockchain. It is characterised by its uniqueness , which makes it irreplaceable against any other virtual entity in the world. Blockchain acts as an immutable, shared ledger that records transactions and tracks assets in a business network. At a cumulative annual growth rate (CAGR) of 57%, the Indian Web3 market  is expected to reach $1.1 billion by 2032, up from $0.0049 billion in 2022. Accordingly, it is anticipated that the Indian NFT market will generate $ 9,247.9 million in net revenue by 2030, growing at a CAGR of 36.9%  from 2024 to 2030 . It is estimated to be valued at 77.5 million USD  in 2025. Even on the consumer side, the demand for exclusivity-based NFT ownership constantly increases. This is reflected in the increase in startup ventures, with 71 NFT startups launched in 2021, and more than 86 NFT startups operating outside of India . Additionally, 18 per cent of ultra-high-net-worth individuals in India have invested in crypto assets, with 10 per cent and 8 per cent invested in NFTs. Incidentally, there exists no concurrent legal framework to regulate NFTs and their commercial dealings, except for the I ncome Tax Act of 1961 , which includes NFTs under the definition of virtual digital assets (VDA)  following the introduction of this term through the 2022 amendments, which taxes them at 30 per cent. The government has attempted to regulate digital currencies by introducing the Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 , to create a supervising framework monitored by the Reserve Bank of India (RBI); however, this bill has yet to become law. Therefore, the interplay between NFTs and other virtual assets, which don’t exist in terms of tangible and material possession, and the law of inheritance in India emerges as an exciting area of study, given the rapid inclusion of NFTs in the modes of wealth acquisition, as indicated by the figures mentioned before.  Defining Property Under Hindu Law, And Does It Cover Digital Assets? Hindu law is primarily governed by the general scheme of succession laid down under the HSA. The term property has not been explicitly defined in the HSA. The Indian Courts have, however, described the term ancestral property  under classical Hindu law as a property inherited by a person up to four generations of male lineage by birth. Furthermore, an HSA allows a person to make a will or testament  to transfer their separate property.  Section 8 of the HSA outlines the “general rules of succession for males”, stating that the property of a Hindu male who dies intestate passes into his Class I heirs, followed by Class II heirs, and agnates and cognates. Furthermore, a property in the name of any member of the joint family is ipso facto  presumed to have been acquired from out of family funds and to be part of the joint family property if the joint family has enough nucleus to develop it . on the date of acquisition, unless it is sufficiently demonstrated and proven that the acquisition was from separate funds and not the joint family funds. Section 8  of the HSA also provides that the property inherited by a Hindu male from his father after  1956 is his separate property. Therefore, a distinct definition of the term " property " for inheritance can be determined from two primary qualifications:  ●      Alienation Right  -  By distinguishing it from the ancestral property, a separate property can be understood as any property owned by a person exclusively with absolute powers over its disposal. NFTs aptly satisfy this qualification. ●      Mode of Acquisition - The property acquired through one’s earnings, predicated on one’s skills or effort, is deemed self-acquired . NFTs also qualify under this categorisation. Where there is no statutory definition, the word " property " under the interpretation of the HSA can be construed broadly to include inherited as well as self-acquired property, subject to the proviso that they do not form part of a coparcenary property, thereby making such property freely alienable and subject to testamentary or intestate succession under the Act. This interpretative approach becomes crucial in dealing with emerging forms of property like digital property and NFTs, whose classification and devolution under Hindu law must be based on an advanced and adaptive concept of " property ." *Shivansh Singh is a 2nd-Year law student pursuing B.A. LL.B. (Hons.) from Integrated Law Course (ILC), 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. Editorial Note: This first part concludes the author's analysis of the conceptual compatibility between NFTs and the property framework under the Hindu Succession Act, laying the groundwork for a broader inquiry into the legal treatment of digital assets. The forthcoming second part will turn to the practical and doctrinal challenges that complicate the integration of NFTs and blockchain-based assets into the Indian inheritance regime. Readers interested in the intersection of technology and succession law are encouraged to follow the next installment of this two-part series.

*by Sunidhi Khabya Introduction Marriage as an Institution has been universally recognised as a sacred and lasting bond, though its meaning has evolved with the changing needs of society. In many cultural and religious contexts, alternative forms of marriages have emerged. Amongst one such evolved ‘meaning’ is the practice of “pleasure marriages”. The practice allows for temporary unions, which are often cloaked in religious or societal justifications. Although short in duration, these unions generate permanent legal-ethical conflicts and ambiguities raising the inevitable questions of consent, gender justice and protection of vulnerable individuals. Understanding Pleasure Marriages: Historical & Religious Context Marriages in Islam, by their very nature, are contractual. Historically, pleasure marriages have found mentions in Islamic traditions. Muta’h Marriage is one of the forms. The term Muta’h derives from the Arabic word meaning “pleasure” or “enjoyment”. Historians trace the practice back to the times when Arab women used to entertain Men in their tents; the men had to pay an entrance fee and could be kicked out anytime at the desire of the women. Such a union conferred no rights or responsibilities, and the objective of this marriage was just for pleasure. The practice involves various hazards and has been denounced by multiple Islamic scholars due to its inherent risks and unethical nature. Muta’h marriage is mostly practices by the followers of Ithna Ashari School under the Shia Muslims . Sunni Law however, does not consider it valid. In the Quran, such marriages have been permitted “ And you are allowed to seek out wives with your wealth in decorous conduct, but not in fornication, but give them their reward for what you have enjoyed of them in keeping with your promise. (4:24) ” Notably, Muta’h marriages can also be concluded by the representatives of the woman. If the father gives the daughter to a man through an oral promise, even then the marriage becomes concluded and valid. If a woman agrees to a declaration of marriage by a man, then also the contract becomes valid. By contrast, religions such as Hinduism and Christianity believe marriage to be a relatively permanent institution and view such practices as incompatible with their conception of marriage. In Hinduism, marriage is considered a sacred bond for seven lives. The purpose of this institution is broad and societal, not just the pleasure of individuals.  Legal Perspectives In India: Judicial Interpretations. Indian laws do not recognise such temporary marriages, and the courts have clarified the position of the law time and again. The meaning of Muta’h marriage was dwelled upon in “ Shoharat Singh v. Musammat Jafri Bibi ” , the court held that such marriage does not confer any rights upon the woman on her husband's property. Still, the courts consider any children conceived from such wedlock legitimate and capable of inheriting their father's property. The courts thus validated the status of children under personal laws whilst restricting their inheritance rights. In the case of “ Syed Amanuallah Hussain and Ors. v. Rajamma and Ors .”  The question of law was whether a Muta’h marriage lasted till the death of the husband, and upon the husband's death, the wife inherited the husband's properties. The husband’s brother challenged this. The court held that if the term for the “Muta’h marriage” is not specified in the contract, then the court treats it as a normal, permanent marriage. Previously, in the judgement of “ Shahzada Qanum v. Fakher Jahan ”,  it was clarified that if a muta’h marriage lacks a specified time period, it is treated as a permanent nikah. Thus, time duration becomes critical in distinguishing between a temporary alliance and permanent marriage. In “ Mohammed Abid Ali Kumar Kadar v. Ludden Sahiba (Minor) ” the court held that spouses do not have the right to divorce in Muta’h marriages. Nevertheless, there are alternative ways of disposing of the contract of marriage. If the parties cohabit even after the expiration of the fixed duration, then the court presumes that the duration has been extended. Thus, there can be an implied extension of the marriage if the partners continue to cohabit after the fixed duration of the alliance expires. In “ Luddun v. Mirza Kumar ” ,   the wife filed a petition under Section 536   of the Code of Criminal Procedure for obtaining maintenance. The court observed that personal laws do not take away the statutory right of maintenance under section 536 of the Code of Criminal Procedure. Therefore, the wife could claim maintenance. Thus, the Indian courts have, upheld women’s rights from the very beginning in cases of Muta’h Marriages or pleasure marriages. However, the legal recognition of temporary marriages varies across jurisdictions owing to the divergence in religious doctrines, socio-cultural contexts, and state policies. International Practices: Contrasting Approaches While some of the Islamic nations incorporate these unions into their personal laws, many secular and non-Islamic legal systems outrightly reject such practices as they conflict with the constitutional rights of women and are glaringly opposed to public policy. In the Shia majority country of Iran, temporary alliances (Nikah mut’ah) are legally recognised   and codified under the civil law system. The Iranian Civil Code, under Chapter 6 ( Article 1075 to Article 1077 ) explicitly allows for temporary marriages, and the subsequent chapter sets out requirements for a specific duration and mahr  (dower). The woman in temporary marriage is entitled to maintenance within the duration of the marriage, while the children born out of such a union are considered legitimate and enjoy inheritance rights under Iranian law. However, these statutory protections are not uniform in implementation and lead to potential misuse of the provisions to circumvent adultery laws and facilitate exploitative relationships under the garb of religious sanction. In Iraq as well, pleasure marriages are illegally performed by some clerics, which is often child trafficking under the garb of muta’h marriage . Here, if a child under the age of 9 years is promised in marriage, then ‘sexual touching’ is considered to be religiously permitted . Thus, the practice has become a breeding ground for child trafficking and prostitution in Iraq. The lack of judicial protection, combined with the patriarchal interpretations of sharia law, often leaves women and children vulnerable to the assaults of men in power, especially when it comes to cross-border elements or undocumented marriages. In contrast to this, Sunni-majority countries, which follow the Hanafi jurisprudence of Sunni schools, generally regard such unions as invalid and akin to prostitution. India does accord statutory recognition to such an alliance, but the judiciary has constantly protected the rights of women and their children born through such an alliance. Most western jurisdictions do not recognise temporary marriages in any form; any such alliance is either treated as non-marital cohabitation or null and void in some cases for public policy reasons. The increasing global culture of pleasure marriages in the form of tourism in economically weak countries like Indonesia, Malaysia and parts of North Africa has drawn attention from      human rights organisations across the globe. Ethical and Social Concerns The practice of temporary pleasure marriages has many risks; the major problems include primarily the exploitation of women by forcing them into unwanted marriages and thereby into forced sexual intercourse with the temporary husband, with no legal recourse under the provisions for sexual offences. Such marriages might even lead to larger humanitarian issues, such as human trafficking of women for prostitution under the garb of marriage. Consent becomes an issue as it is hard to decipher whether or not it was given without coercion. The question arises regarding the maintenance of the children born out of such wedlock, including their inheritance and property rights. Such problems as bigamy, which is prohibited by the laws of many countries, might arise when the spouses are not aware of the background of their partners, thus violating the rights of the original wife. Pleasure marriage tourism, which has increased in recent times, also poses significant challenges as the husband leaves the country after such temporary marriage and cannot be contacted for maintenance or Alimony, thus leaving the women alone to deal with the consequences of such union. Problems of increased risks of sexually transmitted diseases and subjugation of women are another significant risk involved. This has been seen in the recent developments on pleasure marriage tourism in countries like Indonesia . These alliances blur the lines between marriage, prostitution and trafficking, raising serious questions on consent, dignity and autonomy of women; while these unions are defended on grounds of religious identity, their real-world implications must be considered. The Way Forward It is imperative that countries that recognise pleasure marriages must introduce stringent procedural safeguards with clear and mandatorily written contracts ensuring informed consent of both parties. Further, the socio-economic protection of women must be secured through the right to maintenance, healthcare, and education for children born out of such a union. It is of grave importance that cross-border pleasure marriage be criminalised to avoid sexual exploitation and human trafficking; bilateral and international agreements could be arrived at to hold perpetrators accountable across jurisdictions. Moreover, the government should mandate the registration of all marriages, regardless of their form, to prevent abuse; this would ensure legal protection to undocumented spouses and children. Conclusion In pluralistic legal systems, there is an increasing need to harmonise personal laws with constitutional safeguards; the institution of temporary alliance is a tool of subjugation which cannot be shielded under the veil of religious sanction. Thus, as societies evolve, legal systems must attempt to strike a balance between cultural pluralism and universal human rights. Lawmakers must regulate such practices, and protection must be provided to the vulnerable groups. Temporary unions may exist, but the questions they raise about consent, dignity, accountability and justice are far from temporary. They are permanent and critical.  *Sunidhi Khabya is a third-year law student pursuing a B.A. LL.B (Hons.) from 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.

*by Rajveer Singh Sachdev & Aman Anand Introduction The Surrogacy (Regulation) Act of 2021 [hereinafter “The Act”] banned commercial surrogacy in India. Defined under S2(g) of the Act, it occurs when surrogacy involves payments or incentives beyond medical expenses and insurance for surrogate mothers, which is explicitly prohibited. Permissible expenses typically include medical costs and other prescribed expenditures for the surrogate. The alternative proposed to this was the concept of altruistic surrogacy [ Section 2(b) ], which involves no payment or compensation other than the medical expenses and insurance coverage for the surrogate mother. This difference is very narrow, as the only  discernible difference  lies in the payment to the surrogate mother. While the intention behind this framework is to protect the surrogacy process and prevent the exploitation of surrogate mothers, scholars have argued that under-the-table transactions and the grey area involving altruistic surrogacy could lead to its commercialisation in the traditional sense without proper regulations [See Also:   Das and Maut (2014), Payne (2018), Kashyap and Tripathi (2018) ]. This blog will further delve into the idea of the commercialisation of surrogacy, and argue that potentially inefficient enforcement mechanisms could result in the formation of an unregulated market for the same. Commercial Surrogacy Commercial surrogacy was unregulated in India since 2002, until it was eventually banned in 2015 . Prior to the ban in 2015, India was a major hub for surrogacy and was often called the “ Baby Factory .” Due to low cost and favorable conditions, India attracted a lot of foreigners from countries like the UK and the USA. The lack of employment and high amount of compensation after 9 months made commercial surrogacy a popular practice in India. However, due to a lack of proper rules and regulations, unethical practices and exploitation of women  were prevalent. Ethical issues like treating women as ‘objects’ or ‘commodities’ were also brought up [ See Also : Clowes and Cantu (2023) , Kindo et. Al. (2023) , Saxena et. al. (2012) ]. A   study in 2012   estimated the size of the surrogacy industry to be 2 billion dollars per year . In 2015, commercial surrogacy was banned, and the Surrogacy (Regulation) Act, 2021, introduced altruistic surrogacy in India. The surrogate mother, being genetically related to the intending parents [ Sec. 2(zg) ] will be allowed to indulge in altruistic surrogacy. The surrogate mother must be married and should have a biological child [ Sec 4(iii)(b)(I) ]. The Act imposes a   ban   on foreigners, live-in couples, gay couples, overseas Indians and single parents from opting for commercial surrogacy. Commercial surrogacy was deemed immoral  as it treats women as a commodity, and sometimes the woman is not paid appropriately for her time, effort, pain, danger and suffering involved in the course of bearing the child [ See Also :   Arneson (2018) , Blazier and Janssens (2020) ]. The surrogate children often struggle for their nationality and are delivered without a recognised nationality [ See Also:   Baby Manji Yamada vs Union Of India (2008) , Jan Bazaz vs Anand Municipality and Ors (2009) ]. The safety of the surrogate mother was often compromised, and there were no regulations or safety provisions for the mother. The lack of a proper legal system and rules led to the ban on commercial surrogacy in India. However, as the blog will argue, this complete ban on commercial surrogacy doesn’t serve its intended purpose. Arguments 1.     Demand for commercial surrogacy won’t disappear due to it being banned Rooted in basic economic theory, the banning of something won’t automatically cause its  demand to be extinguished  from the market. As long as there is a demand, the supply for the same will continue to rise in an unregulated sector. Despite the US’s prohibition on alcohol during the 1920s, the demand remained the same, which resulted in  illegal speakeasies . The war on drugs is another example where the demand won over the ban, and the war was won by drugs [See Also:  Esquivel-Suárez (2018) ]. The  demand for surrogacy in India is high , not only amongst infertile couples, but same-sex couples, live-in couples, etc [See Also:  Horsey (2023) ] Combine that with the economic incentive the surrogate mother receive as compensation through  under-the-table transactions, the supply  will likely remain steady. As this will fall under the category of commercial surrogacy, the same will exist in an unregulated market despite being banned. Not going into the constitutional aspects of right and freedom to trade, this unregulated market will lead to more exploitation of the surrogate mothers. 2.     Lack of Altruistic Options While the demand for surrogacy is high, altruistic surrogacy remains an option. However, the stringent requirements for the surrogate mothers render the potential candidates for the same very narrow. As per the requirements listed in sub-clause (b) of clause (iii) of Section 4 , the surrogate mother needs to be between the ages of 25-35, genetically related to the intending couple. ever-married, must have one biological child of her own and can only become a surrogate once in her lifetime. This narrows down the candidate pool. Further, most women are unwilling to undergo pregnancy, with all its risks and burdens, without compensation [ See Also :   Shenfield et al. (2025) , Saliu (2025) , Lieber (1992) ]. It risks exploiting women’s goodwill by expecting them to undergo this without compensation. In a   study done by Hibino , it was observed that women in lower strata preferred undergoing surrogacy for a compensatory sum of Rs 3 lakh to 4 lakh, which they quoted as “big money for poor families,” but held the belief that the surrogate mothers could be paid more. The attitude towards the commercialisation of surrogacy when the difference between commercial and altruistic is too simplistic to enforce correctly.   3.     Ambiguities in law and enforcement difficulties The definition of altruistic surrogacy under section 2(b) of the Act entitles the surrogate mother to medical and prescribed expenses, which have not been defined in the Act or the rules. This creates a grey area, where intended parents can compensate surrogates under the guise of “medical expenses.” Without strict guidelines or disclosure requirements, these payments can effectively become commercial transactions in all  but name [ See Also :   Jain (2024) , Stuhmcke (2017) , Bannerjee (2006) ]. Furthermore, surrogacy arrangements are deeply personal and private, typically involving only a few individuals. State authorities have limited capacity to monitor private relationships, financial transactions, or informal agreements. Even when commercial intent is suspected, proving it is difficult without clear documentation or a whistleblower, especially when both parties benefit and are unlikely to report each other. As a result of this legal vagueness and limited enforcement, an informal surrogacy market can emerge, where payments are made discreetly, in cash or non-traceable ways, contracts may be drawn up informally, outside legal scrutiny, and intermediaries and agencies operate in a semi-legal capacity, connecting intended parents and surrogates while skirting regulation. This undermines the very purpose of banning commercial surrogacy, which is often to prevent exploitation and commodification — yet those risks increase in an unregulated, underground environment.   Recommendations Some recommendations can be made to ensure smooth regulation of the same if commercial surrogacy is legalised. Firstly, a transparent framework can be made that allows commercial surrogacy under a licensed practitioner. Only registered practitioners and clinics could operate. Establishing a centralized regulatory body (e.g., National Surrogacy Board) to oversee compliance, licensing, and grievances, and mandate strict accreditation for clinics and practitioners, with regular audits could prevent exploitation. Secondly, allow all consenting women (married, unmarried, single parents, etc.) to become surrogates, provided they pass medical and psychological screenings, undergo mandatory counselling on legal, health, and emotional risks and provide informed consent without coercion. Opening up surrogacy access to single individuals, LGBTQ+ couples, and live-in partners could ensure equity. Thirdly , clarifying and broadening the difference between what commercialised and altruistic stand for could help. Vague terms like “medical expenses” and “prescribed expenses” allow room for interpretation and could lead to under-the-table transactions. Replacing them with transparent compensation structures, including base payment for the surrogate, medical, insurance, and maternity coverage, post-delivery support (if needed) would ensure transparency in payments.   Conclusion The Surrogacy Act’s outright ban on commercial surrogacy is a well-intentioned but fundamentally flawed policy. By ignoring the persistent demand for surrogacy—from infertile couples, LGBTQ+ individuals, and single parents—the law has not eliminated the practice but driven it underground, where exploitation thrives unchecked. The current altruistic model is unworkable: few women will endure pregnancy’s physical and emotional toll without compensation, and vague definitions of "medical expenses" invite covert payments. The result? A shadow market with no safeguards, no oversight, and no justice for surrogates. India has a choice—cling to an unenforceable ban that endangers women, or establish a transparent, regulated system that ensures fair compensation, medical protections, and legal accountability. Regulation won’t encourage commodification—it will prevent it by bringing surrogacy into the light, where contracts are enforced, clinics are monitored, and surrogates are empowered. The 2021 Act’s moralistic approach has failed. It’s time for a pragmatic, rights-based solution—one that prioritizes safety over symbolism, and dignity over denial. The law must change, or the exploitation will continue. The stakes are too high to ignore. * Rajveer Singh Sachdev is a second-year law student pursuing a B.A. LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab. * Aman Anand is a second-year law student pursuing a B.A. LL.B (Hons.) from Rajiv Gandhi National University of Law, Punjab. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*by Sri Janani Seenivasan & Meemansha Choudhary Introduction Refugees today encounter a complex set of challenges related to property ownership and inheritance, often stemming from their displacement and growing legal complexities. While certain rights are recognized by international conventions, domestic frameworks vary significantly. In India, refugees can obtain citizenship after fulfilling specific criteria, which in theory, entitles them to the same inheritance rights as that of Indian nationals. However, various administrative hurdles and a keen focus on regularization instead of a rights-based approach, creates significant barriers in realizing this goal. Despite a broad interpretation of Article 300A  of the Constitution of India, the Indian framework remains glaringly inadequate in addressing the property acquisition and inheritance rights of refugees. The interplay of refugee laws and property rights is often an overlooked subject matter. In India, refugees are treated as ‘foreigners’ under the general immigration regulations, relegating them to a state of uncertainty. For millions of stateless refugees, a chance to live with dignity and self-reliance hinges upon them possessing  economic stability .  The lack of a consistent legal framework complicates their ability to acquire, own and inherit property, further marginalizing them. This article attempts to, firstly, assess India’s legal framework governing property acquisition and inheritance for refugees. Secondly, it delves into the challenges faced by specific groups of refugees, like the Tibetan refugees and the recent moves by the Maharashtra and Delhi governments in granting a freehold status to the Punjabi and Sindhi refugees. Thirdly, it also addresses the implications of the Citizenship Amendment Act, 2019, on property and inheritance rights. Lastly, the authors emphasize the urgent need for an all-inclusive domestic refugee law that broadly addresses the rights of refugees, with a focus on streamlining the administrative process for acquiring citizenship and securing inheritance rights. India’s Approach to Property Ownership & Inheritance Rights of Refugees The Convention Relating to the Status of Refugees, 1951  (‘ Refugee Convention ’) and the Protocol Relating to the Status of Refugees, 1967  (‘ Refugee Protocol ’) defines a refugee as a person fleeing across the international borders because of the horrors of being victimized in one’s own country on the grounds of race, nationality, religion, political opinion or social group. However, India is not a signatory to the Refugee Convention and the Protocol. Further, it does not recognize the contribution of the United Nations Human Rights Commission (‘ UNHCR ’) and prefers to handle the issue of refugees on a piece-meal basis unilaterally, avoiding a one-size-fits-all approach. In the absence of a specific refugee legislation, the Foreigners Act, 1946  (‘ The Act ’) can be best said to govern the entry, stay and exit of foreigners, including refugees. The Act does not distinctively recognize a person as a ‘refugee’ but rather treats all non-citizens as foreigners, granting broad powers to the government to regulate their movement. Further, India is known to discriminate between different marginalized groups. The Citizenship Amendment Act, 2019 (‘ CAA, 2019 ’), has made religion the formal criterion for citizenship whereby all non-Muslim refugees from Bangladesh, Afghanistan and Pakistan are made eligible for Indian citizenship. Under the current regime, refugees, categorized as ‘non-citizens’, face significant limitations when it comes to owning immovable property. Although the Supreme Court  has extended the constitutional right to property under Article 300A to non-citizens, its practical application is severely restricted by the Foreign Exchange Management Act, 1999  (‘ FEMA ’), which governs property acquisition and transfer by non-citizens in India. Under FEMA, only non-resident Indians (NRI); i.e., citizens of India who are residents outside India and persons of Indian origin (PIO), who has held Indian passport at any point of time or if their father or grandfather was a citizen of India, could hold immovable property in India. Citizens of countries sharing land borders with India, such as Pakistan, Sri Lanka, Nepal, China, Afghanistan, Bangladesh, Iran or Bhutan, cannot purchase immovable property. The general permission  extends only to commercial and residential property, excluding agricultural and plantation land.  Refugees, as foreign nationals, cannot purchase any sort of immovable property, unless the property comes by virtue of inheritance through a person resident in India. This means that they can inherit property from a person resident in India, but this is also subject to the approval from the Reserve Bank of India (RBI). This rule, again, does not apply to the citizens of countries sharing land boundaries  with India, meaning that refugees like the Rohingyas from Myanmar and Bangladesh are effectively barred from inheriting property. In contrast, refugees from countries that do not share land borders may have limited inheritance rights, subject to RBI approval. Further, they may be permitted to take residential accommodation on lease for not more than five years, beyond which specific RBI permission is required. Therefore, refugees, as such, have very limited rights to own and inherit property in India.  The Case of Tibetan Refugees & Punjabi and Sindhi Refugees Under the Citizenship (Amendment) Act of 1986  (‘CAA, 1986’), Tibetan refugees born in India between 1950 and 1987 are eligible  for Indian citizenship. Although various rulings  by the judiciary mandate the government to grant citizenship to individuals who meet the criteria outlined under the Act, 1986, they face multiple administrative hurdles in obtaining the same, making the process difficult despite their eligibility. For instance, conditions such as cancelling their Identity Certificate (IC), not residing in Tibetan refugee settlements, and not receiving assistance from the Tibetan govt-in-exile, etc., discourages them from applying for citizenship. In light of the challenges faced by the Tibetan refugees, the Central Government brought the Tibetan Rehabilitation Policy of 2014 , which has resulted in several progessive changes ensuring property rights of refugees. By way of this policy, issuance of standardised lease agreements has been made mandatory for the state governments. This has allowed them limited rights to land use. State governments must sign a lease agreement for twenty years with the Central Tibetan Relief Committee (‘CTRC’),  through which the refugees can get access to land for residential, commercial and agricultural usage. However, the ownership of the land remains with the Government of India, which obstructs the inheritance of such property. In light of these administrative obstacles, the only way to ensure continous usage of the land is repeated lease renewal. A positive step has recently been taken by the governments of Maharashtra and Delhi in this regard. The Maharashtra government  has decided to grant ownership of the property allotted to the refugees under the Displaced Person (Compensation & Rehabilitation) Act, 1954 . In a similar manner, the Delhi Development Authority (DDA) offers ownership titles  to the families of refugees who migrated to India between 1950-60. The intention behind granting these ownership deeds is to resolve the ambiguous status of property of refugees. This step highlights the eagerness of the administration to regularise the ownership of properties across the territory. With ownership rights officially recognised, these families can now legally transfer these properties to their heirs. However, by remaining silent on clarifications regarding the stance of personal law, these decisions will have a limited impact, and the ambiguity surrounding inheritance continues to persist. Impact of the Citizenship Amendment Act, 2019, on Property Inheritance Rights The CAA, 2019, alters India’s approach to refugees by enforcing a religious criterion. It offers a fast-track path to citizenship for non-Muslim refugees from Pakistan, Afghanistan, and Bangladesh who arrived before December 31, 2014. Hindus, Buddhists, Sikhs, Jains, Parsis, and Christians granted citizenship under the CAA, 2019 are eligible to acquire and inherit property under the same laws as Indian citizens after five years of residency in India, as compared to the previous twelve-year requirement. This provides them with significant economic stability and improved property rights. However, refugees who do not qualify under the CAA, 2019, particularly Muslims, and those who have arrived after 2014, face stricter restrictions. As non-citizens, their ability to inherit immovable property is limited as compared to residents of India and requires prior RBI approval. The exclusion of Muslim refugees, such as Rohingyas and Bangladeshi Muslims, raises concerns about discrimination, leaving them without a clear path to citizenship or secure property rights. Thus, the CAA, 2019, enhances property prospects for certain groups, while reinforcing legal and economic challenges for others. Conclusion The decision of granting land ownership to the refugees in India is done by way of policies, schemes and other delegated legislations, rather than a statutory instrument, which questions the effectiveness of such a tool in presence of the capacity to pass a legislation otherwise. Furthermore, these policies are framed based on administrative convenience, rather than a focus on the rights of refugees. Hence, the authors suggest that the emphasis has to be shifted from administrative convenience to a rights-based approach. For this, India must enact a national refugee law that clearly encapsulates the rights of refugees, including their right to property, which can eventually get translated into inheritance and ownership. This law should also ensure that refugees are treated as right holders, and not as ‘passive recipients’ of administrative dynamics. Additionally, the prospect of getting inheritance rights through Indian citizenship is nothing less than an illusion for many refugees. Though citizenship opens up direct access to property and inheritance rights, the complex bureaucratic and administrative processes, such as the requirement to cancel refugee documents and give up benefits , makes it increasingly difficult for most refugees to navigate and realise their rights. A framework that is ‘refugee-friendly’, taking into consideration the limitation of these communities is needed for addressing this grey area. It remains to be seen how the government will take stock of the situation and address it effectively. * Sri Janani Seenivasan is a fourth-year law student pursuing a B.A. LL.B (Business Law Hons.) at the National Law University, Jodhpur. * Meemansha Choudhary is   a fourth-year law student pursuing a B.A. LL.B (Criminal Law Hons.) at the 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.

*by Y. Leela Krishna Reddy and Saachi Minocha. “ Sometimes, by upholding equal rights for a few, courts necessarily must require others to forebear some prior conduct or restrain some personal instinct. Here, that would not seem to be the case. Assuring equal protection for same-sex couples does not diminish the freedom of others to any degree. Thus, same-sex couples’ right to marry seems to be a uniquely ‘free’ constitutional right. Hopefully, even those opposed to or uncertain about same-sex marriage will see it that way in the future. ” - US District Judge John Heyburn, Timothy Love v. Steve Beshear Introduction Rights for the LGBTQ+ community are not merely about the right to exist in private spaces but about the freedom to be visible, to live authentically, and to have one's love and identity recognized in the public sphere. Although the legal recognition of same-sex marriage is but a part of the broader movement towards the full legal recognition of queer individuals as equal human beings, it is a vital step in dismantling centuries of systemic exclusion and discrimination. Marriage as a social institution not only grants same-sex couples visibility and personal fulfilment but also grants a host of rights that flow from the legal recognition of marriage such as inheritance, adoption, spousal benefits, and medical decision-making rights.   The global movement towards legal recognition of same-sex marriage has gained significant momentum in recent decades. Initially spearheaded by Western countries, the movement began with the Netherlands , which became the first country to legalize same-sex marriage in 2001. Since then, numerous countries  across Europe, the Americas, and parts of Oceania have followed suit. Despite the progress, many regions, including large parts of Africa, the Middle East, and Asia, have been slower in embracing these changes due to cultural, religious, and political opposition. In South East Asia, the movement toward same-sex marriage has seen a more gradual and uneven trajectory. India does not currently recognize same-sex marriages, as marriage is traditionally defined under Indian law as a union between a man and a woman. The landmark judgment of Navtej Singh Johar v. Union of India  (2018) decriminalized homosexuality by striking down Section 377 of the Indian Penal Code to the extent that it criminalized consensual same-sex relationships. While this was celebrated as a significant step for LGBTQ+ rights in India, this decriminalization did not extend to the recognition of same-sex marriages and there has been no progress in over half a decade. On the other hand, Thailand has emerged as a leader in LGBTQ+ rights within the region by making significant strides toward the legal recognition of same-sex relationships.  Thailand’s Progressive Step: Legalisation of Same-Sex Marriage “ Today love triumphed over prejudice, after fighting for more than 20 years. Today we can say that this country has marriage equality. ” - Plaifah Kyoka Shodladd, Member of the Parliamentary Committee on Same-Sex Marriage For decades, Thailand has been perceived as a relative haven for LGBTQ+ individuals in Southeast Asia, known for its vibrant queer culture and general atmosphere of tolerance. However, this social acceptance has long stood in contrast to the lack of legal recognition for same-sex partnerships. The struggle for marriage equality in Thailand spans over two decades, marked by persistent activism and political advocacy.  A major setback occurred in 2020 when the Constitutional Court  upheld the definition of marriage as exclusively between a man and a woman. Nevertheless, activists continued their campaign, gradually building support among lawmakers and the public. This persistent effort finally bore fruit in 2024 with a series of legislative victories. On March 27, 2024 Thailand's House of Representatives passed a marriage equality bill with overwhelming support. The Senate approved the final reading of the law on June 18, 2024  with 130 out of 152 senators voting in favor. The historic process culminated on October 13, 2024 , as King Maha Vajiralongkorn signed the bill into law, setting January 22, 2025, as its effective date.  The new legislation marks a significant departure from previous laws. It redefines marriage as a partnership between two individuals, replacing gender-specific terms with inclusive language. This law finally aligns the Thai law with societal acceptance and allows same-sex couples to enjoy full legal, financial, and medical rights, including the ability to adopt children, inherit property, and make medical decisions for incapacitated partners.  India’s tryst with the recognition of same-sex marriage “All queer persons have the right to choose their partners. But the State cannot be obligated to recognize the bouquet of rights flowing from such a Union. We disagree with the CJI on this aspect.”  - Justice Ravindra Bhatt, Supriyo @ Supriya v. Union of India The Supriyo @ Supriya v. Union of India   (hereinafter ‘ Supriyo’ ) judgement is the latest landmark Supreme Court [“ SC ”] judgment in India on the issue of same-sex marriage. While the court recognized the dignity of LGBTQ+ individuals and rejected the notion that queerness is unnatural or confined to urban areas, it ultimately refrained from legalizing same-sex marriage. The venerable judges stated that a gender-neutral interpretation of the Special Marriage Act may not be equitable and could result in women being exposed to vulnerabilities in an unintended manner. The Supreme Court, in refusing to recognise the fundamental right to marry has established a position contrary to international human rights law, particularly Article 16(1) of the International Declaration of Human Rights and Article 23(2) read with Article 26 of the International Covenant on Civil and Political Rights that guarantee all men and women the right to marry and a found family ( see  as argued here ).  While the court recognised that denial of the right to marry to queer couples would ultimately also result in a denial of benefits such as a PF, ESI, pension etc to same-sex couples which has an adverse and discriminatory effect, Justice Bhat opined that these concerns can be addressed by the parliament through a High-Powered Committee. This deferral of duty to the parliament to address the issues faced by the sexual minorities and the legalization of same-sex marriage is extremely problematic, largely due to the burdens of inertia that exist within the parliament.  As articulated by Rosalind Dixon, legislative bodies often face capacity constraints that hinder them from addressing rights-based claims of minority groups in a timely or prioritized manner. Even when a legislature intends to act constitutionally, the procedural and political realities make it difficult to allocate sufficient attention to claims lacking majoritarian support. In the context of the rights of the LGBTQ+ community, which have historically faced social ostracization and legal exclusion, the court's decision to “ pass the baton ” to Parliament overlooks the fact that progress in this domain in India has been largely court-driven ( see   here ) unlike Thailand where the legislature took a proactive role. One remedy that the court could have considered is a Suspended Declaration of Invalidity [“ SDI ”], a method developed in the Fourie case  and used in other jurisdictions to address the issue of same-sex marriage (as argued by several scholars see   here , here  and here ). Through an SDI, the court could have declared the existing legal framework on marriage to be unconstitutional on the grounds of violating equality, while simultaneously giving the legislature a reasonable time frame to amend the law, thus preserving the separation of powers. This approach would allow the necessary parliamentary debate while safeguarding the rights in question. Furthermore, marriage extends beyond simple legal recognition, involving an interconnected web of rights such as maintenance, adoption, and inheritance. Given the interconnectedness of these rights, judicial clarity on how these would apply to same-sex couples is essential, and an SDI would provide breathing space to have discussions and build a structured framework for such considerations. Parliament in Limbo “ Traditionally, liberty has been understood as an absence of State interference in a person’s right to make choices. However, contemporary scholars have come to the conclusion that the role of the State in perpetuating social prejudices cannot be ignored. In effect, where State does not intervene it automatically allows communities with social and economic capital to exercise dominance over communities who have been historically marginalised.” - CJI D.Y. Chandrachud while delivering the keynote address on “ Identity, the Individual and the State: New Paths to Liberty ” The Supriyo judgment reiterates the principle of strict separation of powers while declining to legally recognise same-sex marriage. The court has clearly delineated that is within the parliament’s purview to make a law on marriage, as it is a statutory right that flows from a legally enforceable customary practice. Subsequently, the central government vide gazette notification dated April 16, 2024 ,  has constituted the Committee to examine measures to prevent discrimination against the queer community in access to goods, services, and social welfare entitlements, ensuring protection from violence, harassment, or coercion, safeguarding queer individuals from involuntary medical treatments and surgeries and any other relevant issues that would empower the queer community. The government committee has taken several interim measures  such as the directions issued by the Department of Food and Public Distribution to states and Union Territories to treat queer partners as part of the same household for ration cards. The Department of Financial Services has clarified that there are no restrictions on queer individuals opening joint bank accounts or nominating their partners. The Ministry of Health and Family Welfare has issued letters to states on LGBTQ+ rights in healthcare, banning conversion therapy, ensuring access to sex reassignment surgery, and sensitizing healthcare staff. It is also developing guidelines for mental health and medical intervention for intersex children. While these measures address immediate concerns such as access to welfare benefits, healthcare, and protection from discrimination, they fall short of addressing the fundamental issue: the lack of legal recognition of same-sex marriage. By focusing on administrative reforms rather than granting marital rights, the government is sidestepping the central issue of equality for queer couples. Without the legal right to marry, queer individuals remain excluded from crucial protections and privileges, including inheritance rights, spousal benefits, and family rights. The committee’s actions, while a step forward, are ultimately insufficient to guarantee true equality for the LGBTQ+ community. In this context, the court's reliance on administrative measures and the formation of a committee is not a substitute for robust legal reform. While the committee's initiatives are a positive step, they are ultimately piecemeal solutions that do not address the systemic exclusion queer individuals face due to the lack of marriage equality. Conclusion Thailand's progressive leap toward the legal recognition of same-sex marriage offers a beacon of hope for LGBTQIA+ rights across Asia. It demonstrates that, with persistent activism and a responsive legal framework, true marriage equality can be achieved. For India, however, the struggle for same-sex marriage remains fraught with legislative inertia and judicial reluctance. While administrative reforms may address some immediate concerns, they cannot substitute the social and legal recognition that marriage provides. While India's journey towards equality for the LGBTQIA+ community has been slow and with many setbacks, the lessons from Thailand offer a roadmap—one that draws from sustained activism, unwavering commitment to human rights, and boldness in taking a leap towards a gender-neutral understanding of ‘marriage’. By embracing these lessons, India can turn its limp toward progress into a decisive stride, ensuring that equality is not just a promise, but a lived reality for all its citizens. *Y. Leela Krishna Reddy is a third-year law student pursuing a B.B.A. LL.B (Hons.) at the National Law University, Jodhpur. *Saachi Minocha is a second-year law student pursuing a B.A . LL.B (Hons.) at the 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.

*by Sneha Naresh and Archisa Ratn Introduction In Hindu culture, marriage is considered the sacred bond between a man and woman that lasts for seven lives. However, given the evolving landscape of the world, the concept of divorce, which used to be considered evil, has now been accepted to be part and parcel of the institution of marriage. Currently, Section 13 of the Hindu Marriage Act, 1955  only allows fault grounds for divorce which include cruelty, adultery, desertion, conversion, unsound mind, renunciation and disappearance. These fault grounds require proof and allegations, which leads to prolonged litigation and grave conflicts, highlighting the need for a different ground for divorce. Nevertheless, the ‘irretrievable breakdown of marriage’ has emerged as a significant judicial doctrine in recent times, which focuses on the reality that a marriage may have deteriorated beyond repair, making reconciliation impossible.   The article aims at understanding the historical context and origin of the concept of ‘irretrievable breakdown of marriage’, in both India and the United Kingdom, and its application by the Supreme Court of India during recent times. It further explains the significance of incorporating such a ground in the legislation itself due to the ambiguity surrounding its usage by the lower Family Courts which are usually most accessible to the general public.  Origins of ‘Irretrievable Breakdown of Marriage’ in the United Kingdom: Historically, fault-based divorce was the norm in England, requiring parties to prove adultery, cruelty, or desertion to dissolve their marriage. One of the early cases reflecting the limitations of such a system was Masarati v. Masarati  (1895), [1]  where both spouses accused each other of adultery. This case shows how fault-based divorces fuelled contentions between spouses and complicated the legal process paving the way for an ‘irretrievable breakdown of marriage’ to be established as a ground for divorce. In response to the growing dissatisfaction with fault-based divorces, the Law Commission of England conducted a review, recommending reforms that would allow couples to divorce without assigning blame. These recommendations were implemented through the Divorce Reform Act of 1969 , which introduced the concept of ‘irretrievable breakdown of marriage’ as the ground for divorce. The Act came into force in 1971, allowing couples to prove this breakdown by demonstrating adultery, unreasonable behaviour, desertion, or a period of separation. In recent years, further reforms have been enacted to modernize divorce laws. The Divorce, Dissolution and Separation Act 2020  (The “ DDS Act ”) came into effect on April 6, 2022, introducing ‘no-fault divorce.’ This is the most significant reform since the 1970s. The DDS Act retains ‘irretrievable breakdown’ as the sole ground for divorce but removes the requirement to prove one of the five facts (adultery, desertion, unreasonable behaviour, or separation). A simple statement from one or both parties that the marriage has broken down irretrievably is sufficient. No-fault divorce has brought substantial benefits by reducing conflict between spouses, eliminating the need for blame, and promoting more amicable discussions about financial settlements and childcare arrangements. This approach has modernized divorce proceedings in England and Wales, reflecting the evolving understanding of marriage breakdowns. Similar reforms have been adopted in several countries, such as Sweden, Australia, and the U.S. states. Historical Context of ‘Irretrievable Breakdown of Marriage’ in India: The concept of irretrievable breakdown of marriage has a long history in India, shaped by both legislative efforts and judicial decisions. The idea first gained prominence when the Law Commission of India submitted its 71st report  in 1978. It recommended that along with the fault grounds present in HMA, 1955, ‘irretrievable breakdown of marriage’ should also be inserted as a ground for divorce because the former often increased financial strain and emotional distress in couples seeking divorce. Along similar lines, the 217th Report  (2009) of the Law Commission recommended the same. In this report, the landmark case of Naveen Kohli v. Neelu Kohli  was quoted wherein the Apex Court recommended the Union of India to consider introducing an amendment to incorporate the same.  The Marriage Laws (Amendment) Bill, 2013 , included ‘irretrievable breakdown of marriage’ as a ground for divorce in Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. However, this bill failed to be passed in the Lok Sabha. Nonetheless, over the years, various Indian courts have recognized irretrievable breakdown of marriage in a range of decisions. The Supreme Court in as early as 1996 invoked Article 142 to grant divorce under this ground, in the case of Kanchan Devi v. Pramod Kumar Mittal . Thus, it can be seen that even though irretrievable breakdown of marriage is not yet codified, it is being increasingly invoked by the courts in cases where reconciliation is impossible. Recent Supreme Court Jurisprudence of Irretrievable Breakdown of Marriage: In the case of Shilpa Sailesh v. Varun Sreenivasan , the constitutional bench of the Supreme Court held that the Apex Court can grant no-fault divorce of the grounds ‘irretrievable breakdown of marriage’ using its powers under Article 142 of the Constitution of India , even if one party is against it.  The Supreme Court defined ‘irretrievable breakdown of marriage’ as, “ once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation… that the marriage has shattered beyond repair .”  Article 142 allows the Supreme Court to pass any order or decree which is required for achieving “ complete justice in any cause or matter pending before it… ”. It however set limits to this discretionary power and stated that such authority must be exercised in a responsible manner that is in line with “ fundamental general and specific principles ”. General principles refer to the aspects included in the basic structure of the Constitution, whereas specific principles can be interpreted to be those under the relevant legislations.  In the same case, the Court laid down a set of inclusive and illustrative factors to be considered while granting such divorce:  Period of cohabitation post-marriage. Period of separation, if it has been more than six years, will be relevant.  Substance of allegations made by each party against the other. Litigatory or mediatory attempts to settle issues between parties. Social, educational and economic status of parties. Presence of and number of children, their ages and education received. Financial dependence of one party on another. Best interest of children, in aspects of welfare and custody. Alimony for wife. Economic and financial rights of children. In the case of Rajib Kumar Roy v. Sushmita Saha , the Apex Court granted divorce on grounds of ‘irretrievable breakdown of marriage’ due to considerable factors such as “ continued bitterness, dead emotions and long separation .” In Poonam v. Surendra Kumar , divorce was granted by the Supreme Court as the period of separation was found to be sufficiently long (19 years).   However, the Court has also rejected relief under Article 142 exercising its discretion, such as where the period of cohabitation post marriage was only 40 days , and another case wherein the wife showed willingness to work on the marriage .  Conclusion and Recommendations: The Delhi High Court  recently held that Family Courts do not have the power to grant divorces on grounds of ‘irretrievable breakdown of marriage’, and warned that the lower courts must restrict themselves to provisions present in the statutes. It opined that such discretionary powers under Article 142 are vested only with the Supreme Court of India.  Interestingly, in the case of Prabhavathi v. Lakshmeesha , the Supreme Court declared a Family Court order of divorce granted on the grounds of ‘irretrievable breakdown of marriage’ as null and void. However, it did so because it did not agree with the factors considered by the lower court while granting such divorce and not because the latter did not have such powers. This can be taken as an implicit green signal by the Apex Court that lower courts can grant divorces under the ground of ‘irretrievable breakdown of marriage’ using Supreme Court judgements as precedents. However, the inconsistencies in the stance of the Supreme regarding the power of the lower courts to grant divorce under this doctrine complicates its application. Article 142 further states that such order or decree granted to do complete justice “ shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made… ” A Family Court in Patiala  granted no fault divorce (in 2023) considering the fact that the parties had contested the case in the Court for more than seven years. The Court observed that irrespective of the reason for which one party wants divorce, they are forced to allege baseless accusations against the other party in order to relieve themselves from the marriage. This results in immense suffering for both parties.  Therefore, to set aside such ambiguity in the law, the Parliament must introduce specific sections in the marriage laws to allow divorce on grounds of irretrievable breakdown of marriage. This codification of the doctrine would reduce financial and emotional burden on couples by eliminating the need for attributing blame on one or both of the spouses and promoting amicable resolution of marital disputes. Several appeals and monetary resources would be required to approach the Supreme Court for such a divorce, which again may or may not grant it as it is a discretionary power. Such hardship must not be caused to those parties who are already going through a difficult passage of time due to their failed marriages.  *Sneha Naresh is a fifth-year law student pursuing a B.A. LL.B ( Constitutional Law Hons.) at the National Law University, Jodhpur. *Archisa Ratn is a second-year l aw student pursuing a B.A. LL.B (Hons.) at the 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. [1] Masarati v. Masarati, (1969) 1 WLR 392.

*By Meemansha Choudhary and Tanisha Kapil Unfolding the Gap in Legal Provisions Safeguarding Women India, a country that is ahead in almost every field, still keeps a conservative mindset when it comes to the topic of sexual violence happening after marriage. The concept of marriage in India is viewed as a socially approved relationship  sanctioned by customs and also often seen as a sacrament and a purificatory ceremony for every Hindu. However, what happens within the confines of this institution of marriage, escapes scrutiny from society as well as law. Domestic abuse in this modern world remains an unfortunate reality for women.  While the subject of marital rape is responded to with institutional silence, a landmark judgement delivered by the Delhi High Court  has offered a ray of hope. In a split verdict, Justice Rajiv Shakdher acknowledged that the exception granted to non-consensual sexual intercourse within marriage is completely arbitrary and shares no nexus with the object of classifying rape as an offence. This recognition sheds light on the urgent need to address the inconsistencies prevailing in legal and societal attitudes toward marital rape. Even though we have a new legislation, Bhartiya Nyaya Sanhita,2023 that claims to revamp the laws from the colonial era, we have failed to consider the harsh reality for women. While in the Indian Penal Code, Exception 2 of Section 375  granted immunity from the act of rape to a man if the woman is being his wife is not under 15 years of age, Exception 2 of Section 63  of the BNS grants legal immunity to Indian husbands by stipulating that “sexual intercourse or acts by a man with his wife, provided she is not under 18 years of age, do not constitute rape”. The only difference between both provisions is the age of the woman.  Although Section 3(a)  of the Protection of Women from Domestic Violence Act, 2005 acknowledges sexual abuse as domestic violence, it only provides for civil remedies. Under this, if a woman has gone through marital rape, she can obtain judicial separation but cannot initiate any criminal proceedings.  Consent plays an important role in determining whether a man can be prosecuted for rape but the legislation completely eradicates the concept of consent and it finds no space within a marriage. The law takes away the right of the woman to say no and have control over her body. Therefore, as soon as marriage takes place, it automatically becomes a consensual relationship which proves to be quite problematic and ruthless for the women and even if a man commits the horrendous offence of rape upon his wife, she will have no remedy to rely on.  Tracing the Origin of the Concept  The idea of not criminalizing marital rape has its roots in age-old ideas of the Doctrine of Coverture and the Doctrine of Hale. According to the Doctrine of Coverture, a woman has no individual legal identity after marriage while the Doctrine of Hale states that a man cannot be guilty of rape since the wife has given up herself in such relationship with mutual contract and consent. The basis of the exception is the Macaulay Code of 1837 . Nonetheless, relying upon these two doctrines to not strike down the exception is like betraying the women of one’s nation and snatching away their right to dignity as well as their right to life. It invalidates the fundamental ideas of democracy and gender equality and specifically targets married women's autonomy, privacy, and independence. Sexual acts without consent not amounting to rape is patriarchal as well as unconstitutional violating Articles 14, 15, 19 and 21.  Contemporary Landscape  The marital rape exception is not only supported by many people of the country but striking down of the same has again and again been opposed by the Parliament itself . The arbitrary grounds are that it cannot be applied in the Indian context since people in India treat marriage as a sacrament and are not ready for such happening. By prioritizing marriage as an institution, it can be implied that the woman’s right becomes secondary in a marital bond. The authority of the husband is given priority over the bodily autonomy of the woman thereby, sustaining strong patriarchal ideas. It has been argued that criminalising sexual intercourse without consent would destroy the institution of marriage and it might become a potential tool for false cases for harassing the husbands . However, merely because a provision is prone to misuse, it cannot be a justifiable ground for not including it and depriving a larger population of justice. The issue of misuse can be prevented by establishing safeguards and clear guidelines which can help in determining the credibility of the case.  Ironically, lawmakers care about society’s views and protecting the men who commit such crimes while not paying any attention to what most women go through all their lives because they are married and do not have bodily autonomy. One of the victim’s testimonies reveals that the sexual violence began on her wedding night, where the intercourse was entirely non-consensual and forcibly inflicted on her, despite her pleas for it to stop.  Data from the survey of NFHS-5  indicated that nearly one-third of the women in India have experienced physical or sexual abuse by their husbands. Marital rape in India now has become nothing but a taboo deeply embedded in the patriarchal society with no awareness and no remedy. The 2013 report by the J.S. Verma Committee  even recommended deleting the exception. The committee relied on the decision of C.R. v U.K. which concluded that a rapist remains a rapist regardless of his relationship with the victim. As usual, the Parliament failed to enact the change. United Nations, Human Rights Watch, and Amnesty International also raised concerns about India's refusal to criminalise marital rape . The voices of the victims often go unheard or are overshadowed by the laws and patriarchal societal norms. A 29-year-old domestic worker reflects her deep frustration by stating “ Even my silence is treated as permission  Furthermore, according to a government report, women are subject to abuse 17 times more likely by their husbands than by complete strangers. Everyone seems to take into consideration the matters of tradition, family, and society but no one pays heed to the rights of the victim as a human being. The man’s needs are considered superior to the woman’s bodily autonomy. Even in today’s times, the body of women is treated as a mere object even when K.S. Puttaswamy v. Union of India  affirmed the concept of bodily integrity under Article 21 by stating that it is the right of each individual to determine how and for what purposes their body may be used. The exc eption indeed is an insult to the fundamental rights of women.  Conclusion At present, there are only 32 countries which continue to live in an era where marital rape is not criminalized completely disregarding a woman’s bodily autonomy. The DV Act falls short of ensuring full justice for women in the cases of marital rape. Amending the act to include all non-consensual acts regardless of marital status would be a significant step. It is not just a legislative requirement but morally crucial. Furthermore, awareness drives across the nation can bring a fundamental shift in societal attitude. Educational initiatives in schools and universities could also help in addressing the issue of awareness.  It is now imperative to strike down the exception and adhere to the observations of the Karnataka High Court in Hrishikesh Sahoo v. Union of India , which stated that “a man is a man; an act is an act; rape is a rape, be it performed by a man ‘the husband’ on the woman ‘the wife’”. It is high time to recognise all forms of abuse within the ambit of domestic violence. The sanctity of marriage can only be upheld and preserved when both the spouses are treating each other with mutual respect, it cannot be preserved when one is suffering at the hands of the other.  While it may prove to be challenging to pinpoint the exact threshold where acceptable behaviour gets converted into abuse, it is the duty of society to identify and prevent such transgressions. When this limit gets crossed, the law has to be adequate to penalize such behaviour. Law is a tool of social development and both are intertwined with each other. Only when the law criminalizes sexual abuse within marriage, including marital rape, will a redefined understanding of marriage emerge within the social fabric. *Meemansha Choudhary is a fourth-year law student pursuing a B.A. LL.B ( Criminal Law Hons.) at the National Law University, Jodhpur. *Tanisha Kapil 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.

*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.

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