*Mihika Joshi A Division Bench of the Delhi High Court in Debarati Bhunia Chakraborty v. Suman Sarkar Bhunia [“Debarati Bhunia”] recently delivered a judgment that reflects the judiciary’s growing departure from the traditional “tender years doctrine” on account of it being “rooted in colonial-era gender stereotypes.” The Hon’ble Court emphasised that child custody decisions must no longer presume that young children naturally belong with their mother, instead, the court suggested that any custodial decision must be made upon weighing factors, such as financial and physical security, psychological growth, and educational needs. For instance, in the present case, the court considered factors of parental alienation to displace the absolute assumption of the mother’s status as a primary caregiver. Ultimately, in this case, the custody was awarded to the father, despite the mother raising claims that, as the primary caregiver of the child, she should continue to have custody, in line with the tender years doctrine. The Court rejected these submissions, giving priority to evidence that suggested parental alienation, concluding that the best interests of the child would be served with the father. On one hand, the Delhi High Court’s judgment is justified in its refusal to apply an archaic doctrine; the doctrine is rooted in its assumptions about maternal instinct, coupled with that of paternal incapacity. These assumptions sit uncomfortably alongside Article 14 of the Constitution (equality before the law), as there lies no rational nexus between sex and capacity. The Court’s decision thus furthers the notion that caregiving is not a sex-linked function. The steady displacement of the doctrine by a welfare-first approach indicates a genuine maturation of family law jurisprudence in India. However, this article raises a consequential question that necessarily arises from this displacement, that is: when courts abandon settled doctrines that bind judicial decision making, what is the system that follows? This article seeks to analyse the “best interests of the child” standard as a successor to the “tender years doctrine,” where the resultant system risks being one of unchecked judicial discretion. It argues that while the welfare standard is normatively preferable to the tender years doctrine, its effectiveness depends upon a transparent framework capable of structuring judicial discretion. The Tender Years Doctrine: A Flawed Rule that Nonetheless Performed a Legal Function The tender years doctrine arose in the 19th century out of a need to abolish the prevailing absolute paternal custody norm. The courts went from granting absolute custody to the fathers without looking at any other factors, to now presuming that children belonged with their mothers in the “tender years,” which was from birth, until the age of five. This started as a practice in English common law, which was later transplanted into India, and has persisted since Independence. The doctrine raised obvious issues – it did not consider whether the father was a capable caregiver, nor did it account for situations where the mother was unable to provide a stable and safe environment due to factors such as neglect, incapacity (financial and psychological), or other factors affecting the child’s welfare. More than anything, it could not accommodate families that simply did not fit its underlying assumptions. Yet, it performed a function that regularly goes unacknowledged: it reduced the potential for arbitrariness, providing a reliable system or rule, based on which custody cases were adjudicated. The Guardians and Wards Act of 1890 does not offer much direction on its own. Section 17 directs courts to look at a minor’s age, sex, religion, the character of the proposed guardian, and the child’s preference. The Hindu Minority and Guardianship Act of 1956, further states that the father is a child’s natural guardian under Section 6. However, courts see this more as a beginning than an end to their considerations. This made way for the tender years doctrine, which has been used to fill in these gaps where the laws have fallen short. Now, when the doctrine has begun to retreat, the question is not merely what value replaces it, but rather whether any structure does. In general terms, this is the traditional jurisprudential dichotomy between rules and standards, wherein rules provide predictability and limit discretion via ex ante decision-making, while standards emphasize discretion and context-based determination. This evolution from the “tender years” doctrine to the welfare test serves as an example. The issue here is not about which of these two approaches should be considered superior, but whether standards need any institutional arrangement to organize the discretion they provide. The Rise of the Welfare Standard Supreme Court decisions on child custody have, over the years, progressively moved towards elevating the welfare standard for children, gradually positioning it as a dominant framework, rather than a background consideration. In Rosy Jacob v. Jacob A. Chandramakkal, the Court held that it must 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.” In Gaurav Nagpal v. Sumedha Nagpal the court articulated welfare in its widest sense, going as far to encompass physical comfort, health, education, intellectual development, and the moral and ethical values of the child. In Lahari Sakhamuri v. Sobhan Kodali, the Court reaffirmed that welfare determinations require consideration of multiple factors including emotional bonds, the child’s development, parental capacity, and overall stability; thus reinforcing the emphasis of Gaurav Nagpal. The parens patriae jurisdiction of courts, as held in Sheoli Hati v. Somnath Das, ensures that no custody-determinative decision is ever solely a matter of parental rights, and that the child’s welfare is always the judicial foundation upon which any such decision is to be made. On paper, it is the perfect standard. However, when it comes to application, the welfare standard carries with it costs that are rarely considered- or explicit- in the judgments that invoke it. Courts fail to address the possibility that there exist conflicts within the welfare standard. The emotionally present or stronger parent may not be the most financially capable. The parent that the child prefers may not be the one that courts consider more suitable. No case is straightforward, each case holds within it welfare factors that weigh in either direction. In practice, courts often acknowledge these competing considerations but fail to articulate any consistent principle to resolve them. The resulting situation is one where the balancing exercise becomes one of judicial discretion. This raises a crucial legal question: which factors must necessarily hold more weightage, and what must be the deciding factor in resolving such conflicts that inevitably arise in the nuanced realm of custody disputes? Invisible Presumptions within the Welfare Standard The challenge with the welfare standard lies not merely in its breadth, but rather, its claim of being neutral. The decline of the tender years doctrine over the past decade is often celebrated as being absolutely progressive, yet the abandonment of an express presumption does not eliminate the need for courts to make evaluative choices. It merely changes the level at which these discretionary evaluations operate. Modern constitutional jurisprudence has become increasingly attentive to this problem. In Joseph Shine v. Union of India, the Supreme Court did not just strike down the adultery provision due to its unfair treatment of women, it also dismissed the archaic notion of marriage that the law was founded upon. The judgment explicitly observed that the law can no longer rest on outdated gender roles within families. In Navtej Singh Johar v. Union of India, the Court made a similarly significant claim. It expressed that while the criminal prohibition of same-sex relationships appeared to be universal on the face of it, it rested upon unarticulated heteronormative assumptions. Thus, in both cases, constitutional scrutiny extended beyond the letter of law, to go as far as to consider the nuanced social assumptions that were inherently embedded within it. These decisions are particularly relevant in the custody context, as they show that constitutional scrutiny goes beyond what is explicit in the law into the underlying social assumptions that inform their interpretation. If the process of welfare decision-making continues to rest on implicit assumptions about what an ideal parent or family life looks like, then these assumptions too, must be subject to judicial scrutiny. Welfare-based adjudications continue to require judges to make assumptions regarding what constitutes a “stable home,” “responsible parenting,” and “meaningful parental attachment.” These assessments are not value neutral. Rather, they portray specific views on family life and raising children. While the tender years doctrine was easy to critique and scrutinise, all that recent jurisprudence does is to erase the scope for such debate. The system now operates through the process of balancing welfare considerations thus making them less visible, in the absence of a standard or system for such weights to be assigned. The Case for a Statutory Welfare Checklist The current Guardians Act has not been significantly amended so as to accommodate a structured welfare inquiry. Section 17 lists factors, but does nothing to systematise their application. The Law Commission, through its reports, has repeatedly flagged the need for legislative reform of the Guardians Act. These recommendations, however, remain unaddressed. Various jurisdictions already account for this gap. Section 1(3) of the United Kingdom’s Children Act, 1989, provides a comprehensive checklist that reduces scope for bias or arbitrariness. It is a mandatory framework, encompassing seven major criterias used to objectively determine the best interests of the child. It requires courts to consistently consider the child’s ascertainable wishes and feelings, physical and emotional needs, and the likely effect of any change in circumstances to the same. The framework does not seek to absolutely eliminate discretion- it merely seeks to make discretion more visible, and thus challengeable. Similarly, Australia’s Family Law Act, 1975, outlines a structured framework, placing child safety and views as a primary consideration, which is further supported by factors such as capacity of caregivers, needs, benefit of relationships, and so on. It thus assigns much needed weights to the factors, categorising them between primary and additional considerations, in order to resolve internal conflicts that were observed in Debarati Bhunia. This demonstrates that similarly, the current gap in the Indian framework can seamlessly be filled by a similar checklist provision by incorporating it into the Guardians and Wards Act, 1890. If the central problem is that courts create hidden hierarchies of welfare factors without proper statutory authority to do so, or do not follow a consistent framework, then the solution is to make these hierarchies explicit, which would prompt courts to reason through them publicly. A checklist does not take away the Court’s discretion, but rather, it provides structure to these discretionary powers. Most importantly, it streamlines appellate review. A Court that fails to consider a relevant factor, or fails to apply it reasonably, can easily be corrected in an appellate capacity in a way that a court exercising unregulated “welfare” discretion cannot. A checklist should, at the very least, consider, or prioritise the following factors: i. The child’s ascertainable wishes and feelings; ii. The safety of the child, both mental and physical; iii. Each parent’s past, as well as likely future contribution; and iv. Any conduct that has or that may have a bearing on the child’s welfare. Just like the Australian model, these factors must be given priority, with additional factors supplementing these causes. Moreover, parental alienation must be expressly recognised as a welfare factor. This is a recognition that current legislation does not provide, leaving courts to address it on a case-to-case basis. This is not a radical proposal. It is the logical next step in adopting a welfare-based framework. When the welfare standard forms the foundation for custody law adjudication in India, the law needs to necessarily clarify what that means in practice, which is exactly what a statutory welfare checklist seeks to achieve. Conclusion The development of Indian custody law indicates a definite trend towards child-centricity in custody litigation. However, a welfare principle that does not have a structure attached to it could make the process of exercising judicial discretion opaque, and fail to reveal the rational basis behind judicial decision-making. An attempt to develop a legislative list for determining the welfare of children will retain the flexibility that comes with the welfare principle, while ensuring that its application is based on reason and subject to review. *The Author is a second- year law student pursuing B.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.

*Akshat Pundir and Dheer Vasani Introduction The tussle between personal laws that form part of religious identity and the fundamental rights guaranteed under Articles 14, 15 and 17 has transformed over the decades. In the initial decades of independent India, the courts adopted a non-interventionist approach in matters of personal laws. Over the years, judicial activism has transformed this stance towards active constitutional scrutiny of personal laws. The courts have moved from a literal interpretation of Article 13 towards a purposive interpretation that attempts to support the real intent of the Constitution-makers. This blog examines how Indian courts have moved from shielding personal laws from constitutional review to cautiously testing their limits through interpretation, alternative statutes, and selective judicial scrutiny. The First Confrontation of Fundamental Rights & Personal Laws in Modern India: Non-Interventionist Approach State of Bombay v. Narasu Appa Mali was the first post-independence judgement to directly address the aspect of the intersection of the Constitution and personal laws. The court held that personal laws deriving from religious scriptures are immune from scrutiny under the purview of fundamental rights. This conclusion was based on a literal interpretation of Article 13(3), which treats “customs and usages” separately from “personal laws”. The court justified its reasoning by noting that Articles 17, 25, 26, and 372 would be rendered redundant if Article 13 could invalidate all personal laws. For a newly independent nation where religion was a sensitive affair, the judiciary, for preserving peace, was compelled to keep itself in abeyance from the domain of personal laws. However, in the later years, while society modernised and adopted practices with new precedents emerging, the domain of personal laws remained untouched from any scope of scrutiny through social and legal reforms. The courts, whilst dealing with questions of personal laws, have to date avoided a direct confrontation with the doctrine established in Narasu. They derived alternative secular laws, the essential religious practice doctrine (ERP), etc., rather than withdrawing the immunity which personal laws enjoyed from constitutional rights like equality and liberty. In Ahmedabad Women Action Group v. Union of India, a PIL was filed that challenged discriminatory provisions in Hindu and Muslim personal laws relating to inheritance and polygamy. The Supreme Court reinforced the doctrine of judicial restraint in personal laws established by the State of Bombay v. Narasu Appa Mali. This strengthened the Narasu precedent. Following this, many High Court judgments cited the Ahmedabad case owing to its binding effect and refused to examine the constitutionality of personal laws. The court perceived that any contrary ruling would be deemed an attack on religious identity and chose to keep religious freedom above civil rights. This view has also been supported in the ruling of the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, where the Supreme Court introduced the doctrine of “Essential Religious Practices”, holding that "religion" covers all rituals and practices integral to a faith. The state should adopt a non-interventionist approach while handling such matters with respect to Article 26(b) of the Indian Constitution. First Challenge to the Old Order: Progressive Interpretation of Personal Laws While the courts maintained the hands-off approach from personal laws for decades after independence, the early 2000s witnessed a shift with the rise of judicial activism. Danial Latifi v. Union of India was among the earliest instances where the Supreme Court interpreted personal laws in light of constitutional values. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was believed to have weakened the rights of divorced Muslim women in the aftermath of the Shah Bano judgement, as an attempt to limit the husband’s responsibility of maintaining the spouse and her children till the iddat period. Further, in Danial Latifi, the court adopted the doctrine of “purposive interpretation” and read the act consistently with constitutional values, holding that although maintenance must be provided within the iddat period, it must be sufficient for the woman to sustain herself beyond that period. The court did not challenge the validity of the Act per se but shaped it in a way that upholds gender justice, marking a unique shift from its non-interference approach. The solution adopted in Danial Latifi was therefore not a permanent answer, but a careful exercise in judicial creativity. That makes the judgment important, but also limited. While a just result was achieved, the court did not revisit the jurisprudential standing of personal laws, showing that constitutional justice in personal law cases often depends not on a direct recognition of constitutional rights, but on whether the Court can find room to interpret an existing provision in a progressive way. Where no such room exists, the promise of equality becomes much harder to realize. Shayara Bano: The First Step Towards Direct Scrutiny of a Personal Law In Shayara Bano v. Union of India, the Supreme Court, in a rare move, directly set aside the personal law practice of triple talaq. The majority did this through two slightly different routes. One strand treated Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as “law in force” under Article 13 and struck down talaq‑e‑biddat as manifestly arbitrary and therefore violative of Article 14. While another strand of the bench held that talaq‑e‑biddat was itself contrary to Islamic tenets and therefore could not claim protection as an ERP under Article 25. Narasu was not formally overruled, but the fact that the Shariat Act could be treated as a statutory hook for review meant that, for the first time, a core aspect of Muslim personal law was invalidated on constitutional grounds. This shift has obvious implications beyond triple talaq. If the Shariat Application Act is “law in force” under Article 13, then other codified personal‑law provisions can, in principle, be tested against equality and dignity, even if Narasu still shields uncodified custom and usage. The case also fits into a longer story of courts inching closer to direct scrutiny. Earlier, in T. Sareetha v. T. Venkata Subbaiah, Section 9 of the Hindu Marriage Act was briefly struck down as an unconstitutional intrusion into personal privacy, only for that rights‑based reading to be rolled back in Harvinder Kaur and Saroj Rani. By contrast, Shayara Bano represents a more durable willingness to bring family‑law practices into the frame of arbitrariness, essential religious practice, and subject to Article 13 review. This resembles a pattern that resurfaces in recent fights over gender and religion, such as the hijab‑ban litigation. Yet the “ghost of Narasu” still lingers, such that had triple talaq remained a purely uncodified practice, the Court would likely have found it harder to intervene and overturn. Sabarimala Temple Entry Case: Can Constitutional Morality Win? In Indian Young Lawyers Association v. State of Kerala, a constitution bench of the Supreme Court ruled that the prohibition of entry for women undergoing menstruation (belonging to the age group 10-50) into the Sabarimala Temple violates their constitutional rights under Articles 14 & 25 of the Indian Constitution. This judgment’s significance, specifically Justice DY Chandrachud’s observation, lies in the fact that it treated a religious practice as open to constitutional scrutiny rather than as something automatically protected merely because it’s of a “customary nature” rooted in tradition. However, the recent review and reference proceedings before a nine-judge Bench have brought the ruling back into focus, especially because of the resistance it continues to face from sections of society. The debate now turns largely on two questions: whether Sabarimala is a separate religious denomination with autonomy under Article 26(b), and how far the judiciary can intervene in matters claimed to be religious. The purpose of Article 26 was to grant religious institutions autonomy in managing their affairs, but that autonomy cannot extend to categorising which class of devotees is barred from entering the temple premises. Looking towards this debate from a rights-based perspective, the arguments appear to be floating across the hearing that women are “not perpetually barred” and can enter Sabarimala once they are past menstruating age. As Indira Jaising has argued before the Court, excluding women in this age group effectively deprives them of entry during a significant and active period of their lives, turning a formal right to worship and equality into a largely illusory one. If equality and dignity are to mean anything in constitutional terms, can a woman’s access to a public place of worship be limited by her menstrual status? And when this restriction is justified through ideas of purity and exclusion, does it begin to resemble a form of gendered untouchability? One line of argument insists that Article 17 is confined to caste untouchability, but the counterview is that the constitutional text prohibits untouchability “in any form”, which makes a broader reading plausible where women are excluded on grounds concerning “purity”. The Sabrimala Review, therefore, opens several testing questions, not only of whether constitutional morality can “win” over social morality, but of whether the Court is willing to declare openly that such exclusions amount to a gendered form of untouchability that cannot be saved by invoking ERP. Conclusion The principle established in Narasu, despite multiple confrontations, has never been formally overruled by the Supreme Court. Developments such as progressive interpretation of personal laws, the provision of secular law alternatives, and the essential religious practices doctrine have formed an integral part of the progression beyond Narasu, but have failed to dismantle the unjust structure it created. Personal laws continue to occupy an uncertain constitutional space, as the status of these laws in relation to Article 13(3) of the Constitution remains ambiguous, leaving their relationship with constitutional protections unsettled. In this clash of the social and the individual, of faith and reform, the former continues to prevail over the latter. The overruling of Narasu is not a mere matter of judicial courage as it requires a changing society, and, in the words of Tagore, “where the mind is without fear and the head is held high; where free minds prevail without narrow domestic walls”. *Akshat Pundir is a third- year law student pursuing B.A. LL.B. (Hons.) at Maharashtra National Law University, Mumbai. *Dheer Vasani 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.

*Dhaani Bharat Anita Dave The Surrogacy (Regulation) Act 2021 is inherently discriminatory in its nature as it only includes and recognises two categories of people for surrogacy and excludes other couples from opting for the surrogacy process. The wording of the Act clearly indicates that “only Indian origin married couples and Indian single women who are widowed or divorced” are permitted to avail themselves of the process of surrogacy and excludes unmarried men and unmarried women, secondary infertile couples, live-in relationship couples and same-sex couples from opting for surrogacy and starting a family of their own. It is, on the face of it, that the Act discriminates among the people who can opt for surrogacy. Every individual who is a citizen of India has a set of fundamental rights which are guaranteed by the Constitution of India and cannot be violated in any circumstances. These fundamental rights form an integral part of an individual's life, which is available to everyone. This discrimination in the classification of a set of people for surrogacy is thus, in violation of the Constitutional provision Article 14 of the Constitution of India (hereinafter as ‘Article 14 COI’) and Article 21 of the Constitution of India (hereinafter as ‘Article 21 COI’). Exclusion of Unmarried Individuals Firstly, the exclusion of unmarried individuals from the Surrogacy (Regulation) Act 2021 raises significant legal and constitutional concerns. As, under the current statutory framework, marriage is made a necessary precondition for availing surrogacy. Thereby categorically denying access to single men and women. The Act has clearly failed to recognize that marriage is an individual choice rather than social or legal compulsion. Consequently, despite contemporary shifts in societal structures and progressive judicial recognition of diverse family units, the statute maintains a restrictive framework that effectively bars single individuals from exercising reproductive choices independently of their marital status. For instance, the exclusion of single men from accessing surrogacy services raises concerns regarding the consistency of the legal framework governing parenthood in India. While the Surrogacy (Regulation) Act 2021 restricts single men from commissioning surrogacy, Indian law permits single men to adopt children. Section 57 of the Juvenile Justice (Care and Protection of Children) Act, 2015, expressly recognises the eligibility of a single male to adopt a child, subject to the condition that he shall not adopt a girl child. In light of this statutory recognition of single men's capacity to assume parental responsibilities through adoption, the denial of access to surrogacy for single men appears to lack a clear and rational justification. Exclusion of Secondary Infertile Couples Secondly, the Surrogacy (Regulation) Act 2021 does not recognise secondary infertile couples for the purpose of availing surrogacy. Secondary infertile couples are those couples who are medically incapable of having more than one child. These couples are also excluded from opting surrogacy as stated under section 4(c) (II) that “the intending couple have not had any surviving child biologically or through adoption or through surrogacy earlier provided if intending couple has any child who suffers from any mental , physical disorder or life threatening disorders in such cases surrogacy can be granted to that couple but for that proper approval from the district medical Board is required”. Further, such restriction imposed by the Act is in violation of Article 14 of the COI as there is no equal treatment before the law of such couples as there is inherent discrimination and bias towards other categories of people. The act only classifies two categories of people who are eligible to avail surrogacy. The law fails to create an intelligible differentia, and there is no reasonable nexus for treating similarly situated persons differently. Further, there is a violation of Article 21 COI, as every individual has a right to privacy, which is recognised under the law, and from which the right to make reproductive decisions stems. The right to reproductive autonomy is recognised by various case laws under Article 21 of the COI. For instance, in the case of Suchita Srivastava & Anr .v. Chandigarh Administration, the court acknowledged the fundamental right to reproductive autonomy. Additionally, in the historic ruling in K.S. Puttaswamy & Ors. v. Union of India and Ors, the Supreme Court upheld the ruling in Suchita Srivastava & Anr .v. Chandigarh Administration, wherein the court explicitly emphasised women’s constitutional right to make reproductive decisions under Article 21 of the COI. Also, in the case of Meera Santosh Pal v. Union of India, the Supreme Court stated that “in accordance with Article 21 COI, a woman's right to choose her reproductive choice is a component of her personal liberty.” These are one of many rulings that emphasise reproductive choices as a crucial component of the right to privacy established under the said article of the Constitution. Hence, women, men and couples who want a second child but are incapable of having one are excluded from opting for surrogacy to get another child due to the provision enacted under the Surrogacy Law. Thus, it is stated that such provision enacted under the Surrogacy Law is in violation of Article 14 of the COI and Article 21 of the COI. Exclusion of Couples in Live-in Relationship Thirdly, the exclusion of live-in couples from the Surrogacy (Regulation) Act 2021 raises serious constitutional concern. As Article 21 of the COI grants the right to life and personal liberty to every individual. This fundamental guarantee inherently protects the right of individuals to cohabit with a partner of their choice and to define the nature of their relationship, irrespective of their marital status. As in the case of Madan Mohan Singh v. Rajni Kant, the court had stated that “there would be a presumption of marriage between the parties if such a relationship lasts for a significant amount of time and cannot be characterised as a “walk-in and walk-out” relationship.” Further, in the case of Deepika Singh v. Central Administrative Tribunal, Justice D.Y. Chandrachud stated that families should not be restricted to typical family structures. The family relationship is evolving, and the law must evolve with it. The Courts are now recognising that a family is no longer a traditional unit and must account for the social evolution of families/relationships. This broader understanding of the notion of family supports the recognition of non-traditional family units, including couples in live-in relationships. Consequently, it may be argued that such couples are entitled to equal recognition and protection of their reproductive rights, consistent with the constitutional principles of dignity, autonomy, and equality. Exclusion of Same-Sex Couples Lastly, the issue pertaining to the exclusion of same-sex couples from the Surrogacy (Regulation) Act 2021 is an important issue, as the legal status regarding surrogacy for same-sex couples remains invalid. The Supreme Court of India, in the landmark case of Navtej Singh Johar v. Union of India, decriminalised consensual homosexual acts under Section 377 of the Indian Penal Code, 1860. But this ruling did not automatically translate into conferring broader family or reproductive rights to same-sex couples. Currently the Indian law does not recognize the legal validity of same sex marriages. This position was upheld in the case of Supriyo and Ors .v. Union of India, where the Supreme Court declined to recognise a fundamental right to marry for same-sex couples, effectively leaving the legal status of queer marriages unchanged. Despite the lack of formal marriage recognition, denying same sex couples the right to access surrogacy raises profound constitutional questions regarding the right of reproductive autonomy and equality. The rigid contemporary framework marks a sharp departure from earlier more progressive judicial observations made by the Supreme Court in the case of Baby Manji Yamada v. Union of India, where the court acknowledged that surrogacy was a means of embracing parenthood and acknowledged that the parents might be a homosexual couple or a single parent. The strict implementation of the Surrogacy (Regulation) Act 2021 has effectively reversed this progressive understanding by limiting surrogacy exclusively to legally married heterosexual couples. As the queer couples still categorically remain excluded from the definition of an eligible “couple” under Section 2(h) of the Surrogacy (Regulation) Act 2021. This statutory exclusion arguably infringes upon Article 14 COI by failing the judicially established “twin test” of reasonable classification, drawing an arbitrary and artificial division between married heterosexual couples and the rest of society. As marital status and sexual orientation bear no rational nexus to an individual’s emotional, financial or moral capacity to raise a child, such an exclusion of homosexual couples is wholly discriminatory. Further, there is state-sponsored discrimination which infringes Article 15 COI as the state has selectively denied essential reproductive healthcare technologies like surrogacy based on social prejudices surrounding an individual’s identity, marital status and sexual orientation. Lastly, there is infringement of Article 21 COI as the Act has clearly barred same-sex couples from opting for gestational surrogacy, which infringes an individual’s right to reproductive autonomy, which is an integral part of Article 21 COI. The Act denies a distinct segment of society the fundamental privilege of building a family based purely on sexual orientation and marital status. In conclusion, the Surrogacy (Regulation) Act, 2021 adopts a restrictive approach to parenthood by limiting access to surrogacy primarily to married heterosexual couples, thereby excluding unmarried individuals, secondary infertile couples, live-in relationship couples, same-sex couples, and other non-traditional family structures. Such exclusions fail to reflect the evolving social realities and diverse forms of families recognised by contemporary constitutional jurisprudence. The ability to make decisions concerning procreation and parenthood forms an essential aspect of individual autonomy and personal liberty. Therefore, a more inclusive legal framework is required, one that recognises the changing nature of families and ensures that the right to pursue parenthood through surrogacy is available to all individuals without arbitrary discrimination. *The Author is a recent graduate (Batch of 2026) of National Law University, Jodhpur, having completed her B.A. LL.B. (IPR Hons.) degree. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Ishmeet Kaur Sehgal Introduction The families in India are characterised by a huge wave of migration with members spreading across multiple jurisdictions. About 35.4 million citizens live as Overseas Indians abroad yet, the Indian Succession Act, 1925, limits itself to a domestic outlook, creating a ‘legal chasm’. The legislative gap manifests itself when an Overseas Indian attempts to execute foreign wills in India. The mechanism appears to be very facilitative initially; however, it is subsequently realised that a foreign probate is just an initial document that needs to be supplemented by apostille requirements in the Indian Jurisdiction, resulting in inaccessibility. Consequently, the beneficiary is expected to obtain an ancillary probate. This works not merely as a procedural safeguard but as an administrative hindrance and delay. This article contends that the treatment of foreign wills under Indian law, reflects insouciance towards reform with probates being treated as exclusion rather than a verification tool. The Working of NRI Will Execution - Ancillary Probates The execution of foreign wills in most of the Commonwealth nations is executed by a process called ‘resealing.’ The process, though not purely mechanical, warrants limited scrutiny and demands a lower cost when compared to India. The UK for instance, recognizes the grants of probate under the Colonial Probates Act. While the Courts do retain the power to scrutinise under Section 2. While the courts do retain the power to scrutinize under Section 2, these grounds are limited to a few narrow areas such as payment of debts and dues. However, in India, an entirely different procedure is followed. Section 57 of The Indian Succession Act, 1925, circumscribes the application of testamentary will execution to immovable property situated within India. On the question of dispensing with the wills executed and proved outside the territory of India, a special provision is laid down by the Act under Section 228. Section 228 implies that a foreign probate is not automatically recognised; the provision provides for obtaining ‘letters of administration’, making the process cumbersome in practice. In practical terms, the law requires the beneficiary to file a petition in the court of appropriate jurisdiction and to produce a copy of the original probated will annexed with other relevant documents. The Court then issues a public notice in a local newspaper to invite objections, Post the notification period, the court conducts a hearing to deal with objections, if any, and to ensure the suitability of the petition. Once the court is satisfied, letter of administration is issued to entitle the beneficiaries further to sell off the property or close the bank accounts. This was reaffirmed in Alagammai & 4 Ors. v. V Rakkammal 1991, wherein it was held that a probate granted by a Foreign Court, is not conferred authority in itself; it has to be supplemented by an ancillary probate. This procedure is burdensome for beneficiaries who are trying to execute the testamentary wills of the deceased. Why is this Process Problematic? “Succession is not about fighting the future in a courtroom, but honouring the past”. This procedure typically presents systemic difficulties for Non-Resident Indians (NRIs) since a foreign probate operates as more of a persuasive document rather than having an authoritative value for testamentary succession. The obstacles are not just procedural inefficiencies but a hindering block in access to justice. The article studies them to reflect deeply on how these inefficacies result in a disproportionate impact on those seeking testamentary succession. Trial De Novo Impact The process of obtaining letters of administration results in more or less a duplicative litigation. A decision by a competent foreign authority, already verified in a foreign jurisdiction, is scrutinised again for testamentary capacity and entitlement of a beneficiary. In India, where the familial ties are so inextricably linked, the estate becomes vulnerable to opportunist claims of long-lost shares by distant relatives, given the current procedure. This procedure fails to comply with the international concept of judicial comity, wherein the judiciary of different nations is expected to show a standard of mutual respect towards pronounced decisions. This issue particularly comes forth due to duplicative litigation started at the instance of opportunistic claims. This position can be observed in Mrs Aruna Bharathi v. Mrs M Manicka wherein the beneficiary of a will probated abroad was challenged by a relative in India, multiple issues were dealt with regarding the competence of the foreign court and of the beneficiary. Though the probate was ultimately granted a letter of administration by the Madras High Court, it still resulted in a lot of delay. Apostille Requirement The requirement for producing physical and personally verified documents from foreign registries is another crucial problem. A number of jurisdictions have shifted to a digitised mechanism, for instance, in the UK and Singapore, the process takes place through an e-litigation platform, resulting in less turn over times. In contrast Indian system still relies on manual filling and physical verification. The issue becomes particularly relevant since even a minor mistake in a signature can lead to months of bureaucratic delays or even the rejection of the entire petition in the country, further leaving the status of the concerned property in an uncertain stage. Furthermore, as highlighted in Mrs. M. Aruna Bharathi v. Mrs. M. Manickama, 2024, courts usually require the physical presence of the petitioner or the power agent thereof. Arguably, if the entire process had been streamlined via a digital channel, these bureaucratic uncertainties would not have found a place in the stream. Ad Valorem court fees and other fee burden The burden and implications of finances are another significant issue. To begin with the ad valorem court fees i.e. a percentage share of the estate or a fixed share charged by the court, fees paid to the counsel, and costs for retrieving documents have to be paid in addition to a huge sum already paid to obtain the probate in the initial country. The relevance of the same stems from the fact that succession is meant for orderly transfer not punitive costs. The costs incurred cumulatively render the process economically unviable. This leads to a significantly disproportionate impact on transnational families. International Mechanisms and Way Forward A comparative analysis of international mechanisms reveals that the latter follow a significantly advanced procedure, placing them at a better position than India. In the UK, for instance, the Colonies Probate Act, 1892 is followed, exemplifying an administrative approach to the process. The framework requires only the ‘resealing’ of a foreign probate by a UK probate registry. The scrutiny is limited to jurisdictional validity and procedural verification without a need for re-litigation. Consequently, the process is completed within weeks. The European Union takes a step forward by adopting the “Succession Passport” model, under which the EU Succession Regulation (Brussels IV) applies. This particularly allows legal certainty in transnational matters by entitling member nations to get the probate executed within the territory of the Union. They are better placed because of the clear distinction between adjudication and verification. India must take significant lessons from both these jurisdictions. The need of the hour is to make the process more efficient, cost-effective and globally relevant. The challenge today is to bridge the gap and streamline the framework. One of the most significant steps in this direction is to ratify the Washington Convention, 1973, which provides a uniform law on an international will. Such ratification can entirely bypass the rigid procedure under Section 228 by allowing probates from signatory nations to be accepted upon preliminary verification. Further, bilateral agreements with regional countries hosting a huge Indian diaspora would facilitate a streamlined and efficient procedure. Alternatively, at the procedural level, the role of the courts must be remodelled to a rather ministerial one, necessitating intervention only in the cases of prima facie fraud, preventing a full re-litigation of wills. Entire recalibration should be barred unless an outright defect is detected. Procedural reform must be implemented immediately. Technical reforms must also be catered to, digitising probate documents, integrating Indian authorities with overseas registrations, and recognising electronic authentication methods can significantly reduce delays and bureaucratic friction. Further, the framework can be streamlined by doing away with the apostilles through intergovernmental verification channels altogether. In the interim period, NRIs may prefer Indian wills to avoid the long procedure. However, this is only a temporary solution and must not be seen as an alternative to legislative adaptation and for systemic reform. Conclusion While significant reforms have been achieved in the governance of domestic wills, the international sphere governing foreign wills remains stagnant and is yet to witness an advancement. The object of succession becomes fraught when the law fails to address the needs of its diverse population spanning multiple jurisdictions. The process must be digitised so as to help in lower turnover times and streamline the process. Furthermore, it is important to take steps by enacting special legislation for NRIs like the Colonial Probate Act or a Succession Passport for the nations with a high diaspora. Additionally, the Washington Convention must be ratified. Therefore, Indian law must evolve with the increase in transnational families. *The Author is a second- year law student pursuing B.A. LL.B. (Hons.) at Rajiv Gandhi National Law University, Punjab. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Sandhyashree Karanth Introduction On the 24th of March, 2026, Gujarat became the second state in India to introduce the Uniform Civil Code, following Uttarakhand’s UCC in the year 2024. This is arguably the delayed implementation of Article 44 of the Indian Constitution pertaining to Directive Principles. However, the UCC is incomplete in the sense that the underlying spirit of Article 44 is silent about the process of uniformity, the competent authority to frame the UCC, the procedure, and the legitimacy of the UCC. This post argues that the UCC legislation is the conflation of the concept of uniformity with the process of uniformisation. The Competence Problem: Article 254 and the Limits of State-Level UCCs The basis for the government of Gujarat’s legislation of the UCC is Entry 5 of List III of the Seventh Schedule, which places marriage, divorce, and succession in the Concurrent List. The competence of the states to legislate on these subjects, therefore, cannot be questioned. The issue, therefore, is one of repugnancy. With the passing of Gujarat UCC any existing law, custom, or usage which is inconsistent with the UCC would cease to have effect. This would, without any explicit parliamentary sanction, negate a number of central laws, namely, the Muslim Personal Law (Shariat) Application Act, 1937, the Hindu Marriage Act, 1955, and the Indian Succession Act, 1925. Article 254(1) of the Constitution states that where a state legislation is repugnant to a central legislation on any subject in the Concurrent List, the central legislation would prevail to the extent of the repugnancy. The only way in which the government of Gujarat could have negated the central laws would have been by obtaining presidential assent, which does not seem to have been done. This is not a technical argument. It is a fundamental argument that goes to the very heart of India's federal structure. The very issue of whether personal laws are even subject to Part III of the Constitution is a matter of debate, and the Delhi High Court in the famous case of Harvinder Kaur v. Harmandar Singh resisted the introduction of constitutional principles into personal laws, describing it as like 'introducing a bull in a china shop'. The Supreme Court has always merely recommended the enactment of the UCC and not ordered it, realizing, as it did in Pannalal Bansilal v. State of Andhra Pradesh, that "uniform law, though high desirable, enactment thereof in on go perhaps may be counter-productive to unity and integrity of the nation.". A state government, outpacing Parliament in this area, passed the measure without proper scrutiny and despite opposition demands for deliberation. This does not appear to conform to that spirit. The Neutrality Illusion: Whose Norms Become the Universal Standard? If the previous concern was about who has the authority to enact a Uniform Civil Code, the present one is more fundamental: what exactly is being made uniform, and whose norms are being universalised in the process. The Gujarat UCC is claimed to be community-neutral. This assertion must be analyzed. While the provisions relating to marriage, divorce, and succession draw most heavily on the existing codified personal law applicable to the Hindu community, the key distinction between uniform and common law that is emphasized in the paper is immediately relevant in the context of the Gujarat UCC. S.P. Sathe’s interpretation of Article 44 of the Constitution is that the requirement of uniformity is met if all personal laws are subject to the same principles of social and gender justice, but the Gujarat UCC rules out this interpretation by replacing one code with another. The tribal exemption highlights this structural imbalance. The Gujarat UCC excludes Scheduled Tribes from the scope of the law, in conformity with the constitutional protection provided under Article 342 of the Indian Constitution and the Fifth Schedule of the Indian Constitution. This exemption may be justified in itself, but it weakens the claim of uniformity that the law is built on. If uniformity is truly the goal, and the state claims the power to override personal laws in the name of equality, then this selective exemption becomes difficult to explain. The same reasoning used to protect tribal customary law is also used by religious minorities to defend their own personal laws. By accepting one and rejecting the other, Gujarat suggests that uniformity is not the real goal. Instead, it begins to look like a matter of preferring the laws of one community over those of another. This exclusion of the LGBTQIA+ community only adds to this. The Gujarat UCC, like the Uttarakhand UCC, confines live-in relationships and marriage to heterosexual couples only. This is not a gap, but a positive action of exclusion that the legislation need not have taken. In light of Navtej Singh Johar v. Union of India and the cohabitation rights that are inherent in Supriyo v. Union of India , the Gujarat UCC’s failure to deal with queer families is not neutral from a constitutional perspective. It merely entrenches the invisibility of queer families within the new uniform regime. A code that moves away from a multitude of personal laws but follows a general exclusion does not create uniformity, it standardizes discrimination. Compulsory Registration, Privacy, and the Proportionality Deficit Of the Gujarat UCC’s mandatory registration provisions, those relating to marriages and live-in relationships are the most susceptible to a challenge on constitutional grounds, specifically Article 21. The nine-judge bench of the Supreme Court in Justice K.S. Puttaswamy (Retd.) v. Union of India held that any state action that invades individual privacy would need to meet a three-part test of proportionality. The state action would need to be sanctioned by law, have a legitimate aim, and be proportionate, i.e., the least restrictive means of achieving the legitimate aim. The mandatory registration of live-in relationships, coupled with criminal sanctions of up to three months of imprisonment or a fine of Rs.10,000 for non-compliance, fails the test of proportionality. The legitimate state aim of protecting women in live-in relationships and ensuring the right to claim maintenance could have been met by the state through less invasive measures, such as the creation of presumptions of relationship status from evidence of cohabitation. The surveillance element of this system is conceptually distinct from the privacy objection. The Gujarat UCC, following the Uttarakhand model, mandates sharing of live-in particulars with local law enforcement. It fundamentally transforms the district registrar’s office into a point of surveillance. Shafin Jahan v. Asokan K.M. upheld the right of adults to make adult choices in matters of intimacy in the absence of state or familial interference. This is a right that is firmly situated in Article 21’s guarantee of liberty. The mandatory intimation of parents in cases where couples are in the 18-21 age group is structurally antithetical to this. It arms parents, in worst-case scenarios even khap panchayats, with state-generated data on adult intimate choices. The impact on interfaith or intercaste couples is structurally predictable and legally cognizable. In Lata Singh v. State of Uttar Pradesh, the Supreme Court acknowledged that adult couples entering inter-caste marriages often face threats, harassment, and even violence from their own families. In this legal context, any state-mandated disclosure of intimate relationship details to parents creates a real and immediate risk of coercion, surveillance, and harm for such couples. Another internal contradiction that may be highlighted is that, whereas criminal consequences are prescribed for unregistered live-in relationships, non-registration of marriages, as provided for in the very same legislation, does not invite any such consequence. In this way, the very hierarchy of recognition that this legislation sets out to establish appears to be turned on its head, as the more “formal” of the two relationships (marriage) appears to be treated more liberally than the less “formal” of the two (live-in relationships). No logical rationale for this apparent distinction appears to be provided in the legislative text, and this appears to be a punitive approach to cohabitation as a practice, which does not sit well with the equality guarantee of Article 14 of the Indian Constitution. Conclusion The Gujarat UCC reveals three distinct but connected failures in legal craftsmanship. From a constitutional point of view, it invokes state competence in List III but fails to comply with repugnancy requirements in Article 254, which could be fatal in any court. From a substantive viewpoint, it confuses form (a code) with content (equality in principles), creating a code that replaces minority personal law but excludes tribal law and queer families. From the viewpoint of its registration provisions, it uses the protective role of the state to build a surveillance state, which cannot be tested for proportionality in Puttaswamy. None of these is an argument against uniform civil law in principle. What is in dispute is the manner in which it is done. In reliance upon the Court’s reasoning in Pannalal Bansilal, uniform law enacted “in one go” is counter-productive and requires deliberation, community engagement, and incrementalism. If the UCC is to be an instrument of emancipation, and not of majoritarian consolidation, then its manner of making is as important as its substance. *The Author is a third- year law student pursuing B.A. LL.B. (Hons.) at RV University. 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 girl s”  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.  A. 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.  B. 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. C. 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 S hafin Jahan v Asokan K.M, (para 28)t he 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 V ikas 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. D. 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.  E. 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 asolusist 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.

*by 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 BBA LLB 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.

*by Rohan Yadav Introduction  A landmark event occurred in the regulation of personal laws in India when the Uniform Civil Code (UCC), enshrined under Article 44   of the Indian Constitution, was enforced in Uttarakhand on January 27th, 2025. This watershed moment marked the first time in Independent India, when a civil code was enforced to regulate all the matters related to personal laws such as marriage, divorce, adoption, succession and inheritance, for everyone in a uniform manner, irrespective of religion, caste or creed. A unique feature of this law is its application under  Part III of the Act, which regulates Live-in relations in Uttarakhand and among the residents of the state living elsewhere in India. This code also marks only the second time the Uniform Civil Code has been enforced in any part of India, after the Portuguese Civil Code   of 1867 in Goa. Although   the  UCC Act in Uttarakhand   seeks to holistically regulate the legal framework governing marriage, live-in relationships, succession, divorce and matters incidental thereto as reflected in its long title , it poses serious concerns regarding autonomy, privacy and the viability of government involvement in intimate relationships such as live-in relationships. Concerns about the enforcement of the UCC Code on Live-in relationships:  The UCC defines a live-in relationship as a relationship between a man and a woman, both of whom have achieved 21 years of age. All Uttarakhand residents, including those who reside outside the state, as well as non-residents who live together in Uttarakhand, are covered by the Uttarakhand UCC Act of 2024. It mandates young couples who are currently in a live–in relationship or considering the same to register themselves with the registrar of their respective jurisdiction by giving “a statement of live-in relationship”, which is defined as per section 3(4)(d).   The enforceability of the Uniform Civil Code of 2024 in Uttarakhand, especially on the Live-in relationship couples, has some very beneficial impacts, such as the fact that children born to them are now as legitimate  under  Section 379   and it prioritises consent as well as the overall well-being of women by including maintenance under  Section 388 .  In spite of these benefits, it still raises some serious concerns regarding the regulation of Live-in relationships, a concept whose legal contours were discussed in principle by the Honourable Supreme Court in Indra Sarma vs. V.K.V. Sarma 2013 . It is pertinent to note that the judgment primarily focused on examining the scope and limits of protection provided under the   Domestic Violence Act 2005 , rather than granting an affirmative and universal legitimacy to every form of live-in arrangement. The UCC  indirectly overlooks the established jurisprudence on Live-in relationships as laid down by the Apex Court, comprising principles of dignity, autonomy and privacy by provisions such as mandating registration and parental consent before the age of 21.  Some of the most essential gaps and concerns in the newly enforced code are as follows:  Exclusion of the LGBTQIA+ community: One of the most striking gaps in the formation of this code is the exclusion of LGBTQIA+ people or those who do not fall under the category of binary, thereby undermining the very notions of inclusivity, uniformity and equality, which the code seeks to achieve. The UCC Act in Uttarakhand in entirety excludes non-binary and explicitly recognises only heterosexual unions between a “male” and a “female” as defined under Section 3(4)(b) of the code. This straightforward exclusion of the LGBTQIA+ community is particularly regressive in light of the recent landmark Supreme Court judgments that have upheld the rights of queer communities to cohabitate freely with consent, such as Navtej Singh Johar v. Union of India (2018)  and Supriyo v. Union of India (2023) .  Several contradictions between the law related to marriage and Live-in relationships:  There are some key dichotomies between the laws and statutes governing the institution of marriages and those of UCC  regulating live-in relationships in Uttarakhand such as the legal age of marriage for girls is 18 as per Hindu Marriage Act 1955 and Special Marriage Act 1954   whereas under the Uttarakhand UCC , girls have to wait until the age of 21 years to get the legal recognition of their live-in relationships. There has been neither a rational justification given to explain this flaw by the lawmakers, nor is there any record of Assembly debate addressing the legislative inconsistency whereby a girl legally permitted to marry at 18 must nevertheless wait until 21 to enter a legally recognised live-in relationship without parental consent. Moreover, non-registration of marriages has no serious penalties or imprisonment, while the same is not the case with live-in relationships. Another important contradiction is that Rule 6(4)(f) under the UCC Rules  makes compliance impractical for live–in relationship couples, falling within prohibited degrees of relationship, due to the condition of having a certificate by the partners, certified by a religious head stating that the customs and norms which govern the respective partners allow them to marry. The secularism outlined in the  Preamble   gets undermined as such a requirement introduces religious validation into a secular civil framework. Another major concern arises that neither the legislation nor the judiciary has, to date not satisfactorily disclosed how to ascertain the date from which a live-in relationship is considered to have started, as people who fail to submit the statement of such a relationship within a month of entering such a relationship may be punished under Section 387(1) . Dignity and Privacy of Live-in relationships couples: The Fundamental Right to Privacy, as enshrined in the Justice K.S.Puttaswamy (Retd) vs Union of India (2018)   and the Fundamental Right to Dignity under Article 21 ,   get seriously undermined under this code, especially for live-in couples. Mandatory live-in relationship registration is an invasive state intrusion into people’s personal lives, where couples are forced to divulge sensitive personal information to the government apparatus. The right to privacy is violated when the state puts a similar degree of restrictions upon the live-in relationships as those under marriage, by equating the two. The sharing of registration details with local police authorities is mandatorily required by the UCC  . Police involvement in confirming the legitimacy of relationships might deter couples from registering or living together due to the possibility that sensitive personal information being misused or shared without authorisation can cause people to experience discrimination, blackmail, or targeted harassment, which undermines confidence in government agencies. Such measures even strike at the heart of the Right to Dignity as enshrined under Article 21 , which comprises Individual Autonomy and the freedom to make intimate personal decisions free from disproportionate state interference. The present regulatory framework risks undermining the dignity of consenting live-in relationship couples by institutionalising coercive surveillance, stigma and moral scrutiny through mandatory verification mechanisms. Also, there is a great chance that family members who don’t support interfaith, inter-caste or nonmarital relationships will engage in moral policing and intrusion. Even via obtaining information from landlords, people may attempt to harass these couples by making fictitious complaints to the local police. Moreover, the dignity of young adults (18-20 years) also gets violated due to the mandatory condition of obtaining parental consent, thus obstructing their independent decision-making power about their personal relationships .  Hardships created by the UCC Act for Women in live-in relationships:   The live-in relationship provisions under the Uttarakhand UCC , especially related to mandatory registration, a wide range of verification powers to the registrar and denial of registration on grounds such as "public policy" and "morality," which are vaguely defined, have the potential risk of being enforced more as surveillance rather than as recognition. The Code violates the privacy and dignity of the couple by putting an obligation upon them to disclose their personal information to the officials. This can lead to women being subjected to increased family pressure and societal stigma in situations wherein the concept of live-in relationships is still not accepted by society . The provisions related to making non-registration illegal and giving wide discretionary powers to the registrar   negatively obstruct the dignity, privacy and autonomy of a woman as well as make it difficult for her to engage in an interfaith live-in relationship. This is because often women are construed as being responsible for maintaining the sanctity of a family and sexual morality, which eventually leads to the defeat of one of the main provisions of this code, i.e. ensuring greater dignity and autonomy for women.  Moving towards bridging the gaps and concerns under the Uttarakhand UCC Act for live-in couples:  Replace Mandatory Policing with Incentivised Registration:  An amendment should be made to replace compulsory registration of live-in relationships with a voluntary but beneficial model which encourages participation without coercion. This approach reflects the 21st Law Commission’s Report  that cautioned against over-interference by the State into private unions. Moreover, registration should provide benefits such as providing simplified joint tenancy, easier access to maintenance and automatic nomination rights in banking and insurance to the live-in couple by drawing inspiration from the Portuguese Civil Code of 1867.   This ensures compliance with the registration process by providing benefits rather than fear and also ensures dignity and legal protection to Live-in relationship couples.  Modify the Age of autonomy from 21 to 18 years:  The age requirement for independent registration and applicability of this act should be changed for both partners from the present 21 years to 18 years in order to comply with marriage laws and the legal age of majority as per the Portuguese Civil Code of 1867  and  the Indian Majority Act 1875.   This eliminates the paradoxical requirement that women who are otherwise legally able to vote and get married upon attaining the age of 18 have to obtain parental consent to enter into a live-in relationship. Bring Gender-Neutral Terminology by modifying "man and woman" to "two persons" : This change in definition under Section 3(4)(b)   of the present Code would immediately give statutory recognition and legal protections in matters of maintenance and succession to LGBTQIA+ couples. This shall ensure that the UCC Act becomes compliant with various Supreme Court rulings, such as Navtej Singh Johar v. Union of India (2018)   and   Supriyo v. Union of India (2023)   and promote uniformity and inclusivity.   Secular Affidavit over Religious Certification: There should be an amendment made that states that religious leaders should no longer be required to certify the allowance and this should be substituted by a Self-Declaration Affidavit in which Live-in relationship partners attest to their consent and unmarried single status. This amendment is also in line with the   Portuguese Civil Code of 1867 , which prioritised a civil registrar over religious authorities. This reform is crucial in order to ensure that live-in relationships are not impeded due to traditional religious norms and strengthen the notion that the Uniform Civil Code must be based on constitutional morality rather than religious consent and customs. Protecting Privacy and Dignity along with empowerment of women: There needs to be an amendment that prevents sharing personal data with the police without a court order, which ensures privacy and dignity by preventing misuse of state machinery. Women-led Fast Track tribunals can be established under Section 388   in order to empower women more financially. This amendment is also in consonance with the fundamental right to Dignity, which was laid down in the   Justice K.S.Puttaswamy (Retd) vs Union of India (2018) . Conclusion In conclusion, although Uttarakhand’s UCC   aspires to fulfil the constitutional mandate as given under Article 44 , its current framework regulating live-in relationships risks transforming a shield of protection into a sword of state surveillance. The Code creates a constitutional paradox by institutionalising moral policing and violating the autonomy as well as privacy of live-in relationship couples, which ultimately contradicts the progressive jurisprudence laid down by Justice K.S.Puttaswamy (Retd) vs Union of India (2018)   and   Navtej Singh Johar v. Union of India (2018) .  The Code must draw inspiration and adopt the secular inclusivity from the 21st Law Commission’s Report   and   Portuguese Civil Code of 1867   to truly reflect the constitutional moralities of ensuring dignity, privacy and autonomy to the couple and preventing state overreach in the private matters of its citizens under the altar of legislative uniformity. *Rohan Yadav is a 2nd 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.

*by Y. Leela Krishna Reddy & Udit Jain The right to inherit property has traditionally been a privilege accorded to sons , deeply rooted in India's patriarchal history. The Hindu Succession (Amendment) Act, passed in 2005, aimed to rectify the discrimination against daughters by granting them equal coparcenary rights under the Hindu Succession Act. However, pursuant to Section 2 (2) of the Act, members of Scheduled Tribes were explicitly excluded, unless the Central Government issued a special notification bringing the Act into force for these tribes. Accordingly, tribal women remained governed by customary practices, depriving them of inheritance rights. These customs remain deleterious to women because of their patrilineal nature, and women of tribes often find their property rights subordinated.   The present blog reflects on the issue of tribal women’s right to inheritance, analysing the recent Supreme Court judgment in Ram Charan v. SukhRam and Ors  (Ram Charan). The judgment serves as a turning point, advancing gender justice for women belonging to the Scheduled Tribes. The constitutional guarantee provided within Article 14 is given due regard while interpreting that the judiciary must accord women equal inheritance rights unless a contrary custom specifically excludes. Thus, the article argues that Ram Charan represents a constitutionally significant precedent for gender justice within tribal communities.  Part A examines the historical legal framework governing the inheritance rights of women. Part B argues for the pre-eminence of constitutional provisions and values over discriminatory customary law. Part C analyses the rationale adopted by the Supreme Court in the Ram Charan  case while granting tribal women inheritance rights. Part D discusses the barriers to implementation and proposes possible administrative solutions to ensure the realisation of tribal women’s inheritance rights. A. Historical Legal Framework Inheritance under traditional Hindu Law has been structured through the dual lenses of the Mitakshara and Dayabhaga schools of thought. Both were patriarchal, though in distinct ways: the prevalent Mitakshara system was patrilineal, and women were not allowed to be coparceners. The property devolved according to survivorship, and with each birth and death, the share of the surviving male either diminished or enlarged. Whereas the Dayabhaga school of thought allowed widows to inherit property when there was no male heir, but that right ceased to exist as soon as the widow who got the property died, ensuring property eventually reverted to male lines. Innumerable attempts were made thereafter to provide women with their property rights, culminating in the HSA, 1956, which made widows and sons equal heirs. The 1956 Act, however, did not recognise daughters as coparceners, preventing women from having equal rights to ancestral property. The  2005 amendment  corrected this injustice, granting daughters equal rights to ancestral property, marking a historic recognition of gender parity in inheritance rights.   Yet, for tribal women, Section 2(2) of the HSA remained an impenetrable barrier. This meant that, despite the 2005 amendment granting equal coparcenary rights to daughters, tribal women can not claim inheritance as a statutory right. Instead, they are governed by their own customary law, which has historically been exclusionary to women, only allowing them limited rights over property. While customary practices vary among different tribes, the underlying framework remains predominantly patrilineal . In the Angami and Adibasi community, women were expressly excluded from inheriting clan land, legitimised by the notion that daughters would join their husband’s household, where property rights lay with men. Interestingly, in matrilineal tribes like the Garo or Khasi, where daughters ostensibly inherited ancestral property, the real control of such property was often exercised by the male relatives, relegating women to mere custodians rather than proper owners. Thus, through the 2005 amendment, Hindu women continued enjoying statutory relief and protection, but tribal women’s situation remained pernicious on account of exclusionary customs. B.     Constitutional Principles Governing Gender and Custom The Constitution of India meticulously prioritises fundamental rights over discriminatory customs, securing constitutional promises precedence over archaic traditions. Articles 14  and 15  affirm equality before the law and prohibit discrimination on the grounds of sex. Article 38  and Article 46  direct states to preclude inequalities and concomitantly to endeavour for the protection and promotion of economically and socially disadvantaged individuals, thus discharging their duty as per the parens patriae  concept. Consequently, these provision mandates states and the judiciary with positive obligations in establishing that customs and personal law do not contribute to perpetuating gender inequality.  The Indian judiciary has consistently applied these principles in its interaction with exclusionary tribal customs. In the judgment of Madhu Kishwar v. State of Bihar ,  it was observed by Justice Ramaswamy that local customary law is biased and denying women inheritance would reinforce existing inequalities. In the State of Nagaland & Anr v. Rosemary Dzuvichu  (Naga Mothers case), the Gauhati High Court clarified that customs cannot be ossified dogmas undermining constitutional guarantees. Similarly, in Sarwango v. Urchamin , the absence of a binding exclusionary custom allowed the Court to uphold the daughters’ inheritance on the grounds of equity, justice, and good conscience. In Bahadur v. Bratiya , the Himachal Pradesh High Court, adopting a revisionist approach, held that customs excluding females from inheritance are manifestly contrary to public policy and such arbitrary customary practices cannot be upheld under the guise of tradition.  The Rajasthan High Court grappled with the social and economic impact of the exclusion of tribal women from inheritance rights and the protection of the HSA in the case of  Manni Devi v Rama Devi . In this case, the claim of a woman belonging to the Meena community seeking inheritance rights over property that her father had alienated through a gift deed had been dismissed by the Board of Revenue basis of section 2(2) of the HSA. Justice Anoop Kumar Dhand called Section 2(2) a “formidable barrier” and “manifestly unjustified”   when compared to the rights of non-tribal daughters. The court strenuously restored Manni Devi’s claim and urged Parliament to act so that women of the Scheduled Tribes are not dependent on judicial discretion. Contrastingly, the judiciary in Butaki Bai v. SukhBati  developed the problematic ‘ Test of Hinduization ’ – to claim benefits under the HSA, a tribal woman must prove with proper legal evidence that she has abandoned her customary succession law and has fully adopted Hindu law to be governed by it in matters of inheritance. Yet, the larger jurisprudential trend has been towards maintaining constitutional equality as the standard against which customs must be judged. By the time the Ram Charan  case reached the Supreme Court, this trajectory of cases clearly indicates that gender-exclusionary customs have been interpreted as antithetical to constitutional morality. C. The Pivotal Supreme Court Judgment in Ram Charan & Ors. v. Sukhram & Ors. (2025) The Supreme Court’s decision in Ram Charan marked a progressive approach towards reconciling customary law with constitutional guarantees of gender equality in matters of succession in tribal communities. The case concerned ancestral property belonging to a Gond family, in which the legal heirs of Dhaiya, a tribal woman, were excluded from succession on the grounds of a customary prohibition against women inheriting property. Both the trial court and the High Court upheld this exclusion, reasoning that customary law governed tribal succession and that HSA was inapplicable to Scheduled Tribes by virtue of Section 2(2). The issue before the Supreme Court, therefore, was whether such a custom could withstand constitutional scrutiny and displace the equal rights of women and their heirs. The Court reaffirmed the principle that customs must be strictly proved and cannot be presumed merely based on sporadic practice. It held that the defendants had failed to demonstrate the existence of a uniform, obligatory custom barring women from succession. More fundamentally, the Court emphasised that customs are not static but must evolve in consonance with constitutional morality. It rejected the argument that exclusionary practices, even if claimed as custom, could survive the scrutiny of Articles 14 and 15 of the Constitution. The Court further clarified that the statutory exclusion in Section 2(2) of the HSA cannot legitimise sex-based discrimination in succession, particularly when such practices undermine fundamental rights. In allowing the appeal, the Court declared that Dhaiya’s legal heirs are entitled to an equal share in the ancestral property. Further, the apex court also urged Parliament to consider extending the Hindu Succession Act to Scheduled Tribes to prevent similar exclusions in the future ( See   LiveLaw Report ). The judgment thus reaffirms the constitutional morality that customs, however longstanding, cannot be permitted to perpetuate discrimination against women. D. Barriers to Implementation, and the pathway to realisation of Rights The judgment in Ram Charan  carries profound implications for tribal communities and gender parity through women's empowerment. By recognising tribal women and their heirs as entitled to equal succession rights, the Court has not only delivered justice in an individual dispute but also set a precedent with the potential to reshape succession in tribal societies. Secure inheritance rights are closely linked with economic agency, enabling women to access land, credit, and state entitlements. ( See   generally OHCHR Report ) In the Indian society where land ownership is the basis of livelihood and identity, the recognition of women’s rights represents both material empowerment and a symbolic break from entrenched patriarchy. Legislative action could provide uniformity and certainty, while ensuring that tribal women are not deprived of rights available to women elsewhere. Yet, the path to effective implementation is fraught with challenges ( See   here ). Local revenue systems often fail to capture women’s claims, and enforcement of court decrees may be hindered by administrative inertia. Moreover, resistance from traditional leaders and patriarchal community structures is foreseeable, as the decision disrupts power hierarchies embedded in customary governance, while justifying their opposition under the garb of ‘cultural preservation.’ This unrest can escalate tensions, leading to conflict and reluctance to execute court orders recognising female heirs. Further, many tribal women lack awareness of their rights post the Court’s ruling. Even if they were aware, they face immense familial and social pressures discouraging assertion of their inheritance rights. Alongside legal reform, sustained efforts toward raising legal literacy and sensitising tribal communities about gender equality will be essential to translate the ratio of Ram Charan  into meaningful social change. Such initiatives can empower tribal women to claim their rightful inheritance, advancing their autonomy and social status. Sensitisation campaigns, paralegal support, and accessible legal aid are necessary to translate rights into reality. Equally important is the training of revenue and judicial officers to ensure fidelity to the Supreme Court’s constitutional reasoning at the grassroots. Ram Charan is an important breakthrough, but it is only the beginning of a longer struggle for tribal women’s property rights. The judgment opens the constitutional door to equality, yet it does not by itself dismantle the deep legal, social, and administrative barriers that still restrict tribal women’s lives. Clear legislative reform, and sustained efforts to change social attitudes are necessary to ensure that the promise of this judgment is fulfilled. * Y. Leela Krishna Reddy is a fourth-year law student pursuing B.B.A. LL.B (Hons.) at National Law University, Jodhpur. *Udit Jain is a third year law student pursuing 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.