*Raunak Dixit & Nishant Tripathi Introduction Consider a married couple who have undergone in-vitro fertilisation and thereby produced six cryopreserved embryos. Two of these embryos are transferred and the marriage is subsequently dissolved before the remaining embryos are used. One spouse wishes for the embryos to be destroyed and the other wishes for them to be used. The parties are unable to reach any compromise between these two positions. The question that arises is which of these two positions is to be preferred under Indian law. This question has not yet arisen for decision in India, although it has been the subject of litigation in Tennessee, New York, Arizona and the United Kingdom, as well as before the European Court of Human Rights. That is not to say Indian law is silent. Section 22(4) of the Assisted Reproductive Technology (Regulation) Act, 2021 (“ART Act”) provides that either member of a commissioning couple may withdraw consent at any time before transfer. However, the Act fails to mention is what a court must then do with a vetoed embryo. The missing piece in Indian law is disposition, not consent. An Orphaned Right: Section 22(4) Without a Disposition Rule The ART Act regulates the creation and storage of embryos closely. Section 22 requires the written informed consent of all parties before any procedure and forbids clinics from cryopreserving embryos without written instructions covering the death or incapacity of a party. Section 22(4) then permits any member of the commissioning couple to withdraw that consent at any time before the embryo is transferred to the woman's uterus. The provision therefore requires consent to subsist throughout, and not merely at the outset and it places India, on paper, alongside the United Kingdom rather than alongside the American contract jurisdictions. The difficulty is what the Act does not say. Section 28 caps storage at ten years, at the end of which the embryo is to be allowed to perish or be donated for research with the consent of the commissioning couple. Donation to another infertile couple, the very remedy an American court ordered in Terrell v. Torres, is not available in India at all. That bar is now before the Delhi High Court, where a Bench of the Chief Justice D K Upadhyaya and Justice Tejas Karia issued a notice to the Central Government in January and gave it six weeks to respond. The Act is also drafted around a “commissioning couple”, defined as an infertile married couple approaching a clinic together, which leaves it doubtful whether two divorced people remain the persons whose consent Section 28 requires. So a withdrawal under Section 22(4) stops the treatment and settles nothing else. Neither party can use the embryo. No forum is named and no remedy is specified, while the ten-year clock keeps running, at the end of which the statute disposes of the embryos on everybody's behalf. The spouse who wants nothing done wins by waiting. Why No Other Branch of Law Fills the Gap No other body of Indian law supplies a ready category. An embryo is not property capable of transfer under Section 5 of the Transfer of Property Act, 1882, which contemplates a conveyance between living persons, and it is not a person in the constitutional sense prior to transforming into a foetus. The clinic consent form is an ordinary contract under the Indian Contract Act, 1872, and its enforceability has never been tested by an Indian court in this context. A family court would consequently be left reaching for Section 27 of the Hindu Marriage Act, 1955, a provision written for property presented at or about the time of marriage, not to resolve a dispute over whether a human life is to be created at all. That mismatch is not confined to Hindu couples, since Muslim, Christian and Parsi personal laws contain no equivalent. What Other Jurisdictions Do After the Veto Bites Every one of these systems has had to decide what happens once consent fails. Each of these systems has been required to determine what follows once consent fails. India has not yet addressed that question. Tennessee balances, when Junior Davis and his former wife fell out over seven cryopreserved embryos in Davis v. Davis, the Supreme Court of Tennessee weighed their competing interests and held that, absent a prior agreement, the spouse wishing to avoid procreation ordinarily prevails, unless the other has no reasonable alternative route to genetic parenthood. In New York, Kass v. Kass enforced the couple's written agreement and refused to let a later change of heart displace it. Arizona has adopted both approaches, and its legislature has since displaced them. Ruby Torres underwent in-vitro fertilisation before beginning chemotherapy, on being told treatment would leave her infertile, under an agreement requiring both parties' consent to any later use. On divorce she sought the embryos as her only prospect of genetic motherhood. In Terrell v Torres, the Supreme Court of Arizona enforced the agreement and directed their donation to another couple. Section 25-318.03 of the Arizona Revised Statutes, enacted in 2018, reverses that logic, awarding disputed embryos to the spouse who will bring them to birth notwithstanding any agreement, and severing the objector's parenthood. Being prospective, it could not assist Torres. The United Kingdom sits closest to India. Either gamete provider may withdraw consent up to implantation, a right the Court of Appeal confirmed in Evans v. Amicus Healthcare Ltd and the Grand Chamber upheld in Evans v. United Kingdom in 2007. Natallie Evans had had her ovaries removed after tumours were found, the stored embryos were her last chance of a genetically related child, her former partner withdrew his consent, and the embryos were destroyed. The rule operates harshly, but its content is certain. India has adopted the same rule without adopting the consequential machinery that accompanies it. The Objection That Matters The Kass objection, that the clinic form should simply be enforced as a contract, has little purchase in India, where such forms say nothing about what happens if the parties later diverge. There is a better objection, and this proposal must answer it. A veto that is symmetric on paper is not symmetric in practice. Fertility treatment costs the woman her time and her body, and Section 21(g) of the ART Act closes the door on her at fifty while leaving it open to a man until fifty-five. Add matrimonial litigation, in which everything becomes a bargaining counter, and the veto begins to look like a weapon. A recent commentary in LiveLaw argues that spousal consent under Section 22 operates as reproductive coercion by design where cruelty or domestic violence proceedings are already pending. There is a doctrinal version of the same complaint. If the Supreme Court could hold in Arun Muthuvel v. Union of India that, for age-limit purposes, the process begins when the embryo is frozen, why should the only consent that counts be the consent given years afterwards? Two concessions are owed to that argument. Firstly, the bodily integrity strand of the pregnancy cases does not carry over, because nobody's body is invaded when a stored embryo is implanted in another woman. Secondly, the objector's interest is accordingly weaker here than in the abortion cases. What survives is decisional autonomy, which Suchita Srivastava v. Chandigarh Administration located within personal liberty under Article 21 of the Constitution and Justice K.S. Puttaswamy v. Union of India entrenched as a facet of privacy. The Delhi High Court has since read the ART Act purposively in the light of both. None of that is a reason to abandon the veto. It is a reason to give the deadlocked spouse somewhere to go. India should keep contemporaneous consent as the general rule and add the exception Davis carved out, letting a family court permit use where the embryo is the applicant's only remaining route to genetic parenthood. Evans refused to recognise that exception, so the departure would be deliberate, and it is defensible on one condition. The statute must sever the objector's legal parenthood at the same time, as the Arizona provision does. What is imposed is then a genetic fact and not a family. What Reform Should Look Like The instrument already exists. The ART Rules make consent a precondition to freezing under Rule 13, taken on Form 15 for embryos and Form 16 for gametes, and Form 15 is where their intentions ought to be recorded. It should carry a disposition clause, signed by both intending parents at the point of freezing, saying who may claim the embryo if the marriage ends first and whether storage or perishing is the default when they cannot agree. Donation to another couple cannot be offered as an option until the statutory bar now before the Delhi High Court is removed. The clause must operate as a rebuttable starting position, since Section 28 conditions perishing on consent given at the point of disposition, which is a separate and later step from consent given at freezing. Two further amendments are needed. A family court should be given express jurisdiction to determine disposition on deadlock, and the period during which proceedings are pending should be excluded from the ten-year ceiling, so that a contested case is decided on its merits rather than extinguished by the calendar. Since an amended form would operate prospectively, clinics should also be required to obtain a disposition instrument for embryos already in storage at the annual contact that Form 15 already mandates. Conclusion This is not the first occasion on which Indian law has confronted a regulatory gap in assisted reproduction. Baby Manji Yamada v. Union of India exposed the absence of surrogacy regulation only after a custody crisis, and regulation followed years later through the Surrogacy (Regulation) Act, 2021. The position on embryo disposition is better than that, because Parliament has already supplied the harder half of the rule in Section 22(4). What it has not supplied, and what the Central Government should now supply by amending the ART Rules, is any answer to the question of what happens on the day after a withdrawal. Raunak Dixit is a Second-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University (RMLNLU), Lucknow. Nishant Tripathi is a Third-year B.A. LL.B. (Hons.) student at Dr. Ram Manohar Lohiya National Law University (RMLNLU), Lucknow. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Varuni Savanur & Pratyaksh Jain Summary - This blog discusses the decision of the Himachal Pradesh High Court in the case of Umawati v. HPSEB and critiques its use of the principle of maintenance jurisprudence to decide the question of family pension. It holds that common welfare objectives are not sufficient for one statute to borrow from another statute without explaining why the destination statute permits such an approach. When Welfare Statutes Collide According to the Central Civil Services (Pension) Rules, 2021, family pension is limited by legal definition. Rule 50 of these rules is explicit on this point. The Explanation to Rule 50 states that the term widow/widower refers to one’s spouse who is legally married to the deceased. Nevertheless, courts have started to take recourse to sources other than pensions when determining beneficiaries of family pension. In Umawati v. HPSEB, the Himachal Pradesh High Court delivered a judgment, on April 25, 2026, granting family pension to a woman whose marriage had not been legally recognised. It was established that Umawati had married Jai Ram in 1994 but was unaware that her first marriage was not dissolved because of a customary method. It was only on May 14, 2012, that a civil court found out that she had never been a “legal” wife of Jai Ram. In an interesting turn of events, it was revealed that Jai Ram later sought deletion of Umawati's name from his service records, a fact relied upon by the Single Judge while rejecting her claim. However, the High Court decided in her favor in 2026. In doing so, the courts resorted to legal principles that have no direct bearing with the language of Rule 50. The court based its ruling on the Supreme Court’s decision in Rameshchandra Rampratapji Daga v. Rameshwari Rameshchandra Daga, which allows a spouse from a void marriage to seek maintenance. Drawing on this precedent, the High Court itself held that “the object of providing family pension cannot be different from the object of providing maintenance.” The High Court also relied upon constitutional values such as women's economic empowerment, social justice and purposive interpretation. Nevertheless, these considerations do not answer the prior question of whether Rule 50 permits expansion of the statutory definition of "widow." Purposive interpretation is available only once a court has first shown that the text is genuinely ambiguous; it is not a licence to read welfare goals into a provision whose language is otherwise clear. The Explanation to Rule 50 defines "widow" by reference to a legally solemnised marriage without qualification, leaving little room for the kind of textual ambiguity that purposive reasoning is meant to resolve. By invoking the welfare purpose of pension law before establishing that ambiguity, the High Court assumed the very point that needed to be argued. Umawati provides a good example of a practice of equating two separate statutory schemes because of their similarity in terms of achieving a certain social goal. However, this blog posits that such practice is inadequate unless reasons for using principles that have been developed under one statutory scheme to another one are provided. Rule 50 and the Choice of Legal Status Rule 50 makes pension benefits contingent upon marriage, a status ordinarily provable through a marriage certificate, a registry entry or personal law, even though, as Umawati itself illustrates, disputes over marital status frequently arise despite the availability of such documentary evidence. GID 22 (Government Instruction/Decision) appended under Rule 50(8)(c), CCS (Pension) Rules, 2021), as quoted in the Umawati ruling, requires authorities to determine the legality of competing marital claims before settling family pension, particularly where questions arise regarding multiple spouses. Certainty of this sort is important in cases where public money is at stake and there may be several claimants for the same benefit. A rule that requires pension administrators to determine on a case-by-case basis whether cohabitation over many years amounts to a marriage would be more time-consuming, contentious and vulnerable to claims made after the death of the pensioner since the best person to refute such claims will no longer be alive. Rule 50, by insisting on marriage as a condition precedent to pension entitlement, serves this purpose. Marriage in this context acts as proof of dependence. Maintenance Law's Evolution Beyond Formal Marriage The law relating to maintenance has over the years shifted from considerations of formal marital validity to those based on actual dependence. In the case of Rameshchandra Rampratapji Daga v. Rameshwari Daga (2005), the Court ruled that a bigamous marriage, while illegal, was not of such immoral character as to deny the financially dependent spouse alimony under Section 25 of the Hindu Marriage Act. This line of reasoning has led to Sukhdev Singh v. Sukhbir Kaur (2025) where a three-judge bench of the Court bases the relief granted on the statutory construction of the term “decree” in Section 25 of the Hindu Marriage Act rather than considerations of morality or equity. This form of relief is discretionary and continues to be dependent on the conduct of the parties involved. Umawati follows this line of judicial thinking, but by citing the earlier and more famous judgment of Daga and not the subsequent decision of Sukhdev Singh which is somewhat more technical in nature. The judgment then goes a step further which was unnecessary for the cases dealing with maintenance. It considers the family pension to be subject to the same consideration based on the proposition that pension and maintenance share a common object. Why Maintenance Principles Do Not Automatically Travel Courts routinely borrow principles across statutes. However, such borrowing is legitimate only where the statutes in question share sufficiently similar purposes and decision-making frameworks. Umawati, however, fails to recognize that maintenance and pension are dissimilar on four major grounds: 1. An entirely distinct basis for obligation. Maintenance is a private obligation paid out of the assets of the paying spouse. The family pension, on the other hand, is an established obligation set up by the State, as part of its service contract with its employees. The court that increases maintenance re-calibrates the equilibrium between two private parties; the court that increases pension obligations changes how public funds are allocated in a system not designed by either party. 2. Distinct roles of institutions. The family court assesses the equities of a dispute between two particular persons, and each party is heard in person. On the other hand, the pension board applies Rule 50 universally to many thousands of cases which will never be litigated at all. A discretion well-fitted to the first context does not necessarily carry over to the second. 3. Different beneficiaries and competing interests. A maintenance order involves two individuals. A pension order may involve a surviving first wife, whose portion would be reduced, the children who might inherit from the deceased, other nominees, and even the exchequer. 4. Different circumstances and evidence. Maintenance proceedings usually occur at or about the time of the relevant facts, with both the parties able to give evidence and be cross-examined. Pension cases, on the other hand, often arise many decades after the event, long after the government servant has died, when the person best positioned to explain the situation is not around anymore. This is precisely the reason why Rule 50 relies on a verifiable legal fact rather than a fact-finding process that becomes increasingly difficult with time. Umawati fails to take account of any of these distinctions. It also fails to take account of Raj Kumari v. Krishna (2015), a three-judge Bench decision arising from a woman’s claim to be recognised as the legally wedded wife of a deceased government employee for the purposes of pension, where her marriage had been solemnised in an Arya Samaj temple while the employee’s earlier marriage still subsisted. The deceased, Atam Parkash, had married Raj Kumari in 1961 and subsequently married Krishna in 1970 while the first marriage continued. After his death, Krishna and her daughter claimed the deceased’s properties, including his pension and retirement benefits. The Supreme Court found that pension is the property of the legally wedded wife, and that a woman who enters a second marriage while an earlier marriage continues cannot, “by no stretch of imagination,” be considered such. Until a court gives reasons for the insertion of a private, judicially conducted, closely proximate investigation into a public, administratively conducted investigation occurring many years after the claim that maintenance and pension serve “the same purpose” will remain insufficiently substantiated. After Umawati, the High Courts have continued to take diverging positions in circumstances similar to the ones in question, with some denying pension rights in cases of analogous nature, while Himachal Pradesh itself has vacillated between making an exception and insisting on a rule of law. The difference is not factual, but doctrinal. Closing the Gap This issue can be solved using a simple test to determine the pension authority, and for any future court, when a void marriage should nevertheless create a pension right. Such a test will have to maintain the stress on certainty which is central to Rule 50 while accommodating exceptional situations when following the letter of the law would defeat the welfare purpose of family pension. Applying the criteria restricting maintenance claims in Badshah and Sukhdev Singh cases, a claimant who seeks pension on the basis of void marriage will be asked to prove, cumulatively: First, that she married in good faith and without knowing about the subsistence of a previous marriage; Second, that she has been economically dependent on her husband; Third, that the recognition of her pension claim will not displace or diminish any legal spouse’s pension right; Fourth, that she has not concealed any information about the previous marriage, or has not been actively involved in such concealment; Fifth, that denial of pension in these particular circumstances will defeat, rather than promote, the welfare purpose of Rule 50. A test framed along these lines would give pension authorities a rule capable of consistent application, while requiring courts to explain, on the facts before them, why the maintenance analogy holds. Conclusion By making entitlement dependent on a legally verifiable status, Rule 50 was intended to create some degree of certainty in family pension claims. As Umawati illustrates, however, there may be times when the need for certainty clashes with reality. The High Court’s judgement imports the reasoning of maintenance law into the realm of pensions, albeit using an older and more inaccurate formulation of the reasoning used by the Supreme Court. It has never been disputed that women like Umawati need to be protected. What has yet to be decided is precisely when and in what manner this protection should take place. Until there is a change in Rule 50, this issue will remain open to differing interpretation by each High Court. *Varuni Savanur is a third-year B.A. LL.B. (Hons.) student at Maharashtra National Law University, Mumbai. *Pratyaksh Jain is a second-year B.A. LL.B. (Hons.) student at The West Bengal National University of Juridical Sciences. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Haripriya Gautam Introduction The landmark judgment of Saroj Rani v. Sudarshan Kumar declared Section 9 of the Hindu Marriage Act (HMA)1955 to be constitutionally valid, thereby upholding the judgment of the Delhi High Court in Harvinder Kaur v. Harmander Singh Choudhry and overruling Justice P.A. Choudary’s judgment in T. Sareetha v. T. Venkata Subbaiha, which declared Section 9 of the HMA to be arbitrary and violative of Article 21 of the Constitution.. Since then, many scholars have criticized the Court's decision, applauding the radical outlook of T. Sareetha for being progressive and ahead of its time. This body of criticism, however, represents only one end of a broader spectrum of interpretations surrounding Section 9. At one end lies T. Sareetha's position, which reads Section 9 as facilitating forced cohabitation and consummation, thereby rendering it violative of Article 21. At the other end lies an interpretation that reads Section 9's emphasis on restitution and conjugal rights as implicitly encompassing a right to sexual intercourse within marriage, an interpretation that has, in turn, been used to justify the Marital Rape Exception (MRE) under Exception 2 to Section 63 of the Bharatiya Nyaya Sanhita, 2023. This article argues that it is this latter interpretation that obscures the real intent of Section 9, and the genuine state interest in reconciliation that the provision is meant to embody. It is only when marital rape is criminalized that section 9 can be realized for its true purpose and not be used to retain a patriarchal law based on societal conceptions of marriage and marital equality. Understanding Restitution of Conjugal Rights (RCR) Justice Rohatgi in 1983 dismissed an appeal challenging section 9 of the HMA and went on to elaborate on its object which is to achieve stability in marriages and encourage reconciliation. It was also emphasized that the only sanction invited for non-compliance with an RCR decree is financial, and not specific performance, thereby bolstering the stance that sexual relations cannot be forced upon women through court orders. Certain conclusions can be inferred from this judgment. For one, sexual intercourse is not “the summum bonum of marriage”(ultimate goal of marriage). It is an expectation but not the entirety of the conjugal right. The court cannot enforce sexual relations between parties. As Ms Karuna Nundy (Advocate) points out “conjugal relations end where bodily integrity begins”. The judiciary in India has recognized the existence of this integrity and independent identity of a woman in the marriage and the same cannot be annulled through an RCR decree. Second, there is a public interest in the maintenance of marriages. As Brian H Bix points out, marriage is a public act between two consenting adults who then share a public status. This is especially true when a couple seeks state sanction or state benefit which then turns their marriage into a social concern. Third, it is the government that establishes frameworks to decide in situations of divorce and separation and it has a manifest interest in being able to help its citizen who seeks recovery on a policy. These reasons also explain the court's jurisdiction in deciding cases of such nature. These two inferences together convey the message that while the state is interested in maintaining the marital status of its citizens, it also recognizes equality within the institution and cannot override a woman’s bodily integrity through an RCR decree. Its plain purpose is to encourage reconciliation and avoid situations where a legally married spouse is left in a lurch, unprotected by the state when she seeks benefits of her marital status. However, this very purpose can jeopardize a married woman’s rights if it is distorted to justify marital rape. The Misleading Justification of MRE The Counsel representing the Men Welfare Trust in the Khusboo Saifi v. UOI case presented various arguments in defense of exception 2 to section 63 of the Bharatiya Nyaya Sanhita 2023 that protects husbands who rape their wives from prosecution. Among the many cited reasons, marital harmony and natural conjugality in marriage took the forefront. Additionally, consent given out of ‘spousal intimacy’ despite the unwillingness of the wife was presented as one of the reasons for not criminalizing marital rape. 167th report on the Criminal Law (Amendment) Bill 2012 was quoted in support to establish that “if marital rape was brought under the law, the entire family system would fail”. In fact, the case of Vidhya Viswanathan v. Kartik Balakrishnan, 2014, was cited to establish that denial of sexual intercourse amounts to mental cruelty. These arguments are strong and compelling; however, accepting them would result in section 9 being used as a bait to institutionalize marital violence and Justice P.A. Choudary’s concern regarding it would come true. Reconciliation, a necessary state interest, would then effectively conceal a patriarchal law and leave a married woman with limited options when raped by her husband. Professor Jill Elaine Hasdayexplains how nineteenth-century feminists challenged the voluntariness of a wife’s consent even when her husband had forced himself on her. They articulated that a wife could only give free consent when she had both, the legal right to refuse and the practical alternatives to submission. As explained above, Indian courts have done well to recognize the integrity and independent identity of a woman in the marriage however, when it comes to practical alternatives, only the divorce laws have been slightly modified. These too have been greatly insufficient. For example, the law continues to shield a husband from criminal liability for non-consensual intercourse with his wife moreover, as Professor Hasday explains it, divorce grounds based on cruelty require the victim to show extraordinary brutality on the part of the defaulting spouse, thereby leaving out cases of stand-alone marital rape where consent was not free. In India, in the G.V.N. Kameswara Rao v. G. Jabilli case of 2002, the Supreme Court held that cruelty must be assessed not from a solitary incident but from an overall pattern of conduct so intolerable that living together becomes impossible. A single, or even occasional, instance of non-consensual intercourse is unlikely to meet this threshold absent sustained brutality. This is especially true in light of the fact that marital rape is not recognized as an offence in India at all, and that courts have, conversely, held a wife's refusal to have intercourse to itself amount to cruelty. This asymmetry leaves a woman seeking divorce on the ground of marital rape alone with little realistic recourse. The second compelling argument of marital reconciliation is not only strong in the sense that it warns the legislature against the effect of criminalizing marital rape on the institution of its interest but also vehemently advocates for the view that MRE accommodates shared concerns of both men and women alike. As Professor Hasday puts it, this argument asserts that a wife’s interests are “always and wholly” served in a marital union wherein a husband cannot be prosecuted for raping her. However, there is nothing in the impugned section of MRE to show that this ‘mutual interest’, is served in its real sense. For this, it is important to understand the meaning of reconciliation. E J Griew in his writing on divorce law notes how earlier, cruelty and adultery were seen as breaches of marital contract. The law treated the condonation of these breaches as a waiver of a legal remedy rather than a restoration of personal relationship. He underscores the irrelevance of emotional accord in such condonation as per law. However, Denning L.J. in Mackrell v. Mackrell[i] explained reconciliation to mean the restoration of mutual trust and confidence. Even if previous devotion does not exist, the settlement between parties should be such so as to no longer embitter their daily lives. Following from these two interpretations, while MRE has the effect of compelling the wife to waive off a remedy available to other women, it takes no account of the quality of the relationship or the real restoration of trust and confidence between the parties. Therefore, the ‘mutual interest’ argument may fall out since MRE may in fact fail to effect any real reconciliation between spouses. Conclusion Section 9 of the HMA must be read in harmony with a woman’s bodily integrity, a principle the courts have themselves affirmed. Restitution of conjugal rights, within its legal purview, does not and cannot compel a woman into sexual relations with her husband; the decree’s only sanction remains financial, never specific performance. Yet this harmonious construction of Section 9 remains incomplete so long as Exception 2 to Section 63 of the BNS continues to shield husbands from prosecution for raping their wives. A true reconciliation of restitution with equality is possible only when this exception is struck down as unconstitutional. There are, however, incremental signs of judicial recognition that marital rape constitutes cruelty within a marriage. In X v. X, decided on 30-07-2021, the Kerala High Court recognized marital rape as a ground for divorce on the basis of cruelty. This finding relied on the wife's testimony that her husband had subjected her to forceful and abusive sex even during her pregnancy and while she was sick and bedridden, forced her into acts of sexual perversion and unnatural intercourse against her will, and did not spare her even on the day his own mother died. While the judgment is a welcome departure, the underlying facts reveal the problem rather than resolve it. Only conduct of this extraordinary, almost unrelenting brutality was sufficient to meet the threshold of cruelty. This sets an impossibly high bar. A woman subjected to a single, or even repeated, non-consensual sexual act by her husband, without such compounding violence, is left with no real recourse either under the criminal law, owing to the MRE, or under matrimonial law, owing to the stringent cruelty standard. The very demand for “extraordinary” brutality becomes a second barrier layered atop the first, ensuring that only the most severely victimized women can even approach the courts, while the rest are pushed back into the “consent” that MRE presumes of them. While Indian courts have not laid down a precise criterion for what qualifies as sufficiently “severe” victimization, the closest judicial guidance comes from the case of Samar Ghosh v. Jaya Ghosh, where the Supreme Court held that the conduct complained of, and the resultant danger or apprehension, must be “very grave, substantial and weighty.” Only women who are able to establish such grave, weighty, and substantial danger will find relief. For victims of marital rape, this bar is rendered nearly insurmountable by its continued non-criminalization and by the broader social inattention that has kept the issue from even being recognized as a problem in India. It is this two-fold failure that calls for reform. First, marital rape should be recognized as an independent matrimonial ground in itself, without requiring it to be subsumed under or elevated to the standard of cruelty. Second, interim civil remedies should be made more easily accessible to women during the pendency of matrimonial proceedings, so that divorce is not the only exit from an unsafe marriage. Third, judicial sensitization on the realities of marital sexual violence would help ensure that future benches do not inadvertently recreate the same high threshold that X v. X tends to embody. Together, these measures would ensure that a woman's access to justice does not hinge on the sheer scale of her suffering. Justice Rohatgi was not wrong, and neither were Justice P.A. Chaudhary's concerns unfounded; what continues to evade the true purpose of reconciliation is society's hesitation to call marital rape by its name. Until that hesitation is overcome, in law, and not merely in judicial sentiment, restitution will remain incomplete, and reconciliation, illusory. *Haripriya Gautam is a penultimate-year B.A. LL.B. (Hons.) student at Hidayatullah National Law University, Raipur. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Meghna Singh Matrimonial litigation often involves more than the two spouses whose names appear on the case title. Allegations of adultery, disputes concerning legitimacy, financial concealment and questions of parental responsibility frequently draw third parties into the litigation’s evidentiary orbit. Hotel records may reveal the movements of an alleged partner. Call detail records may reveal private communications involving individuals who have no stake in the dispute. DNA tests may implicate the rights and dignity of children who are not litigants. However, Indian family law provides limited guidance on protecting third-party privacy when personal information becomes part of someone else’s matrimonial dispute. While a developing jurisprudence exists concerning the privacy implications of DNA tests and paternity cases, there does not exist an analogous body of law when it comes to documentary information involving a third party. The Unaddressed Problem of Third-Party Privacy The conventional understanding of matrimonial litigation assumes a conflict between two spouses. Procedural rules, evidentiary principles and judicial reasoning are largely designed around this binary structure. But in contemporary family conflicts, people who are not even parties to the proceedings are increasingly involved. A person may be accused of adultery. A paternity dispute will inevitably impact a child. This is also relevant in the context of financial disputes following a divorce, where, for instance, the dispute may involve disclosure of sensitive financial information belonging to a third party. However, Indian family law lacks a consistent doctrine for answering questions concerning the extent to which a third party’s privacy will be disregarded by the courts or tribunals adjudicating disputes between spouses. This challenge extends beyond Family law. Although the Digital Personal Data Protection Act, 2023 recognises the importance of protecting personal data, it exempts processing by courts and tribunals when such processing is essential for judicial functions under section 17(1)(b). This leaves third-party disclosure largely dependent on judicial discretion, emphasising the need for clearer standards. Documentary Disclosure and the Limits of Section 14 The latest developments in Sachin Arora v. Manju Arora highlight the issue. The wife sought disclosure of the hotel booking records and call detail records to support her allegation of adultery. The husband refused and raised a plea on the ground of privacy violation for not only himself but also the alleged partner. The Delhi High Court gave permission for disclosure as the plea was not that of a “fishing” or “roving” one but was confined and relevant as requested, and later, when the appeal was filed before the Supreme Court, it refused to interfere with the High Court's order. The significance of this decision lies in the reliance on Section 14 of the Family Courts Act, 1984, which permits family courts to receive reports, statements, documents, information or other material that may assist in effectively resolving the matrimonial dispute even if such material may not otherwise be admissible under the Indian Evidence Act of 1872. The alleged partner was neither heard nor represented. The court did not examine whether disclosure was strictly necessary, whether there were less intrusive alternatives or whether the individual had an opportunity to object. The main protection was the production in the sealed cover. Sealed-cover production provided confidentiality from public access but did not solve privacy problems that arise from disclosure to the parties, their counsel and the court itself. Section 14 addressed an issue related to evidence, but it did not resolve privacy concerns. This gap becomes clearer when we consider how courts have addressed another form of disclosure: DNA testing. A Different Approach in the DNA Jurisprudence DNA testing presents the same fundamental question as raised in Sachin Arora: should a court disclose an individual's private, personal information to resolve a dispute between other parties? Courts have addressed this issue differently when the information in question is genetic rather than documentary. In such cases, a third party, often a child, is implicated, with their privacy and legitimacy forming the core of the dispute. In Goutam Kundu v. State of West Bengal , the Supreme Court laid down that a direction for a blood test/DNA analysis cannot be made as a matter of routine. The necessity to balance the competing interests must be considered by the court before ordering disclosure. This principle was further developed in Dipanwita Roy v. Ronobroto Roy, where DNA testing was permitted only because the evidence was deemed essential to resolve the dispute and no equally effective alternative remedy existed. Additionally, in the case of Aparna Ajinkya Firodia v. Ajinkya Arun Firodia, the Supreme Court rejected a request for a DNA test on a minor, emphasising both the minor's privacy and the importance of maintaining legitimacy against a trivial challenge. In Ivan Rathinam v. Milan Joseph, the court acknowledged that forcing a DNA test might violate essential rights to privacy and dignity-rights recognised as flowing from Article 21 in K.S. Puttaswamy v. Union of India. Most recently, in Chaturbhuj Pradhan v. Amar Pradhan & Anr., the Supreme Court did not mandate a DNA test until it confirmed that paternity was genuinely contested in the case and that additional evidence was lacking; in this instance, the court clearly considered interests before approving disclosure. These decisions demonstrate a consistent judicial approach based on necessity, competing interests, and privacy protection. One Problem, Two Responses When considered collectively, these lines of authority expose a significant contradiction.The instances of documentary disclosure, such as in Sachin Arora v. Manju Arora and cases concerning DNA[MOU3] testing, both necessitate that courts evaluate personal information, impacting individuals who aren't involved in the cases. The risks of reputation, emotional harm, and legal repercussions are similarly significant. Courts frequently examine issues of privacy, dignity, necessity, proportionality, and the interest of the affected third party in DNA cases. In contrast, in cases concerning documentary disclosure, most decisions rely on the wide-ranging powers conferred by Section 14 of the Family Courts Act. Consequently, the lack of defined standards concerning notice, objections, and judicial assessment leaves third-party disclosure mainly dependent on judicial discretion. Comparative Perspective: Balancing Privacy and Evidentiary Needs The challenge of balancing access to relevant evidence with the privacy interests of individuals who are not parties to the dispute is not exclusive to India. However, other legal systems have addressed this issue through specific procedural methods. According to Rule 31.17 of the Civil Procedure Rules in England and Wales, obtaining disclosure against a non-party requires a specific application supported by evidence, and the court may permit such disclosure only when the documents are necessary for fair disposal of proceedings. In the USA, the United States Federal Rules of Civil Procedure regulate requests for disclosure of documents or information from non-parties through subpoenas. Rule 45(d)(3) empowers courts to quash or modify a subpoena where it involves protected information or imposes an undue burden or affects a protected interest of the third-party. Under the European Union’s General Data Protection Regulation (GDPR), Article 14 requires individuals to be informed when their personal data is obtained from third-party sources. Even though Article 23 allows for restrictions for reasons like judicial proceedings, such limitations must be established by law and satisfy the requirements of necessity and proportionality. Developing a Unified Framework for Third-Party Privacy Protection Indian family law presently provides no clear standard for assessing third-party privacy claims in disclosure proceedings. While Family Courts possess wide evidentiary powers under section 14, the exercise of such discretion must also account for the privacy interests of the third party. Therefore, the objective is not to restrict evidentiary access but to ensure a safeguard that balances the evidentiary requirements with the protection of third-party privacy. The proposed framework does not seek to create an entirely new set of obligations for the family courts. Rather, it draws upon principles that already exist within the Indian constitutional and family law jurisprudence. The recognition of privacy as a fundamental right under Article 21 in Justice K.S. Puttaswamy v. Union of India established that intrusion into personal privacy must satisfy standards of legality, suitability, necessity and proportionality. Similarly, the courts' approach in DNA-related matrimonial disputes reflects that disclosure of highly personal information cannot be directed routinely and must be justified by the requirements of each case. Accordingly, the proposed framework may initially operate through judicial interpretation of Section 14, requiring Family Courts to exercise their evidentiary discretion in conformity with constitutional privacy principles. Hence, when disclosure requests implicate the privacy of a non-party, the court should ask whether the information is generally necessary, whether adequate alternative evidence exists, and whether the intrusion is proportionate to the evidentiary object in pursuit. Conclusion The central concern is not whether the court should have the power to order disclosure of private information. Allowing such access may be essential in certain matrimonial disputes to ensure a fair adjudication. The challenge is to develop procedures without subjecting third parties to unnecessary intrusion in disputes they are not parties to, while still respecting each person's dignity, autonomy, and interests. The growing dependence on digital evidence in contemporary matrimonial disputes, including hotel room records, location history, call logs, and other personal data, amplifies this concern. In the absence of a clear protocol, a third party whose information becomes relevant in the dispute risks having their private lives scrutinised without notice, representation, or any meaningful opportunity to protect their interests. The further evolution of family law must not only focus on expediting discovery of evidence but also on enabling such disclosure to happen through safeguards that are procedurally fair, consistent, and proportionate. *Meghna Singh is an Advocate and an LL.M. graduate from National Law University, Odisha (NLUO). The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Pranay Rajesh Sonkusare On 17 July 2026, Japan’s Parliament enacted a revised Imperial House Law, the country’s first major amendment to succession rules in decades. The law was passed under Sanae Takaichi, Japan’s first ever female Prime Minister, who told Parliament months earlier that she personally endorses the position that succession should remain limited to male-line male descendants. The revision expands the pool of men eligible to succeed by allowing the imperial family to adopt distant male relatives from now-defunct collateral branches, and lets princesses retain their royal status after marrying commoners. What it does not do is give any woman, including the emperor’s only child, Princess Aiko, a right to succeed. A female head of government has just presided over legislation that hardens, rather than loosens, the exclusion of women from her country’s oldest institution. This is not a contradiction but rather a demonstration of what happens when succession law is built to sit outside the reach of an equality guarantee. A Constitutional Carve-Out, Not An Oversight Japan’s exclusion of women from the throne is not merely a policy choice reflected in ordinary legislation, the kind of provision that could, in principle, be amended by a simple parliamentary majority. The Constitution itself insulates that choice from ordinary politics: Article 2 delegates the entire question of succession to the Imperial House law, and it is that statute, not the constitutional text, which contains the substantive male-only rule. Article 2 of Japan’s Constitution provides that ‘the Imperial Throne shall be dynastic and succeeded to in accordance with the Imperial House Law passed by the Diet.’ This single sentence does two things. First, it delegates the entire question of succession to ordinary legislation. Second, it does so from a distinct constitutional chapter, one concerned with the emperor as a symbol of the state, rather than from the chapter containing Japan’s equality guarantee. Japan’s own Diet has treated this much as settled: the House of Representatives’ Research Commission on the Constitution has recorded cross-party agreement that Article 2 is an ‘exceptional provision’ that the Constitution itself permits. What has never been settled is whether Article 14’s equality guarantee should be read into it, a disagreement the Commission has acknowledged for over two decades without resolving. The practical result is a succession rule that has never needed to survive a rights challenge, because no institution, legislative or judicial, has ever been forced to answer the question that the text leaves open. A government panel reached the same conclusion in 2021, recommending no change to the male-only rule, and Takaichi has now enacted legislation consistent with that recommendation despite recorded public sympathy for Princess Aiko’s succession, a Kyodo News poll taken two months before the vote found 83 per cent support for allowing a female emperor, against the 13.1 per cent that opposed it, reported widely in coverage of the family’s shrinking numbers. The law’s one soft hinge is a supplementary provision requiring the statute to be reviewed once every thirty years. That is not nothing: it leaves room, at least formally, for the debate to resurface. But a scheduled review is not a right, and nothing compels a different outcome next time either. India’s Opposite Trajectory: From Personal Law Immunity To Vineeta Sharma India inherited its own deeply patrilineal succession tradition in the Mitakshara coparcenary, under which only male descendants held a birth right in the ancestral property. For decades, Indian courts treated personal law, including Hindu Succession law, as substantially insulated from ordinary constitutional equality scrutiny, an assumption traceable to the Bombay High Court’s reasoning in State of Bombay v. Narasu Appa Mali (1951) that uncodified personal law was not ‘law’ within the meaning of Article 13. Unlike Japan’s succession rule, the insulation never constitutionally entrenched the way Article 2 entrenches the Imperial House Law. It was a judicial and legislative assumption, and assumptions of that kind can be legislated around, as done by the Parliament. The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act, 1956 and provided that daughters are coparceners by birth and are given equal rights and liabilities as sons. However, the amendment’s text did not make clear whether a daughter’s coparcenary rights depended on her father having been alive on the date the amendment came into force, and different benches of the Supreme Court in Prakash v. Phulavati (2015) and Danamma v. Amar (2018) gave conflicting answers to this question for years: Phulavati held that a daughter’s right depended on her father being alive when the amendment came into force, while Danamma reached the opposite practical outcome even though the father in that case had died decades earlier. The Court finally answered this question in Vineeta Sharma v. Rakesh Sharma (2020). The Court held that the 2005 amendment applies retroactively: a daughter becomes a coparcener by birth regardless of whether her father, the family member through whom her claim arises, was alive when the amendment came into force. Unlike a specific inherited asset, coparcenary status does not depend on the ancestor being alive at any particular moment; it exists from birth. The judgment did not need to invoke Article 14 to reach a gender-egalitarian result. But the interpretive move it made, refusing to let an accident of timing determine whether a daughter counts as a full heir, only makes sense against a background assumption: that succession law answers to constitutional values of equal treatment. Japan’s constitutional design forecloses that same assumption from the outset for its imperial succession. Not Every Personal Law Has Had Its Vineeta Sharma Moment This rewrite of Hindu Succession law did not happen because Parliament or the courts abstractly decided that patrilineal inheritance was unfair. The reason for this is that litigants had been forcing the question in Prakash v. Phulavati (2015) and Danamma v. Amar (2018) for years prior to the closure by Vineeta Sharma. But it was litigation, and not legislative goodwill or scheduled review that got this body of law to that point, and that is an outcome Japan's 30-year review clause is meant to guard against. Other Indian personal law systems are still waiting for their own forcing event. Classical Sunni inheritance rules, applied through the Muslim Personal Law (Shariat) Application Act, 1937, give a daughter half or even less of the share a son receives on intestate succession, a rule that has sat undisturbed behind the same Narasu Appa Mali logic that once shielded Hindu coparcenary. That rule is now being tested: in April 2026, the Supreme Court issued notice to the Union on a writ petition by advocate Poulomi Pavini Shukla (Poulomi Pavini Shukla v. Union of India (2025)) and the Nyaya Naari Foundation seeking this declaration under Articles 14, 15 and 21, after the court had already remarked that a Uniform Civil Code was the answer, and that striking the 1937 Act down risked a legal vacuum. That is a Court doing to a live equality claim something analogous to what Article 2 does to Japan’s succession by design: both route the question toward the legislature rather than resolve it as a matter of rights. The difference is that India’s version of this insulation was never entrenched the way Japan’s is, so the door is not sealed forever. But as of this writing, nobody has forced it open; the petition remains pending, tagged with similar matters, with no date set for final hearing. What Representation Alone Does Not Do The comparison matters for a reason beyond doctrinal curiosity. It is tempting to treat descriptive representation, a woman occupying the office of Prime Minister, as a proxy for substantive progress on gendered law. Takaichi’s succession law is a clean counter-example: representation at the top of government did not translate into representation within the office of head of state, because the legal structure governing that office was never built to be moved by who happens to hold political power at a given moment. Structural insulation from rights review beats the preferences of whoever is in office, female or otherwise. India’s experience cuts the other way but should not be read too triumphantly. Constitutional and judicial pressure, applied over sixty years, did eventually reach even a body of law once treated as untouchable. But that pressure has been radically uneven. Muslim and other personal law systems, remain far less reformed than Hindu succession law, and the same Narasu Appa Mali assumption that took decades to erode for Hindu coparcenary continues to shield large parts of Indian family law from the scrutiny Vineeta Sharma eventually applied. Japan is close to what complete constitutional insulation looks like, the review clause is a formal escape hatch, not a right. In India the demolition of insulation has been demonstrated but only sporadically, over time, and through the efforts of persistent litigation. Neither system suggests that equality in succession follows automatically from having women in a position of power. In both, equality follows only from building, or dismantling, the specific legal architecture that determines whether succession rules can be challenged at all. A Note For Family Law Reform Generally The lesson is not that Indian family law has solved the question that has eluded Japan. It is rather about the means as well as the result. But wherever a succession rule, whether dynastic, coparcenary, or customary is designed to be beyond the reach of an equality clause, representation in the government is unlikely to reliably affect it, because those represented have nowhere to challenge it. A Vineeta Sharma moment, for any given personal law system, arrives only when a litigant is willing to spend years testing the question and a court is willing to treat old assumptions as revisable. These are the same two ingredients, over decades, shifted Hindu succession law away from the assumption traceable to Narasu Appa Mali and toward the gender-equal outcome eventually reached in Vineeta Sharma, and that the Muslim Personal Law challenge now before the Supreme Court has not yet supplied in combination. The Diet closed a door in July that Indian courts spent decades prying open for one community, and have not yet reached for several others. *Pranay Rajesh Sonkusare is a second- year law student pursuing B.Sc. LL.B.(Hons.) at West Bengal National University of Juridical Sciences, Kolkata. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Anant Sharma & Disha Joshi Introduction The Preamble to the Convention on the Rights of the Child describes family as “the fundamental group of society and the natural environment for the growth and well-being” of every child. Yet, in Harmeet Singh v. State (GNCT of Delhi) & Anr., the Delhi High Court found that it was the State that stood ready to dismantle the family it claimed to protect. The woman appearing before the Court was no longer just the prosecutrix in a criminal trial. She was a wife, a mother, and the party petitioning to save a marriage from the very law meant to protect her. Under the Protection of Children from Sexual Offences Act, 2012 (POCSO), the relationship at the centre of that household which begun while she was still a minor is not treated like a marriage at all, but as an offence. The case therefore raises the question not only of the doctrinal justification for POCSO’s irrebuttable presumption of harm, but also of what is left of a marriage, a home, and the child born of it, once criminal law refuses to see any of them. This piece raises the question, narrowly: when POCSO’s presumption of harm and the Prohibition of Child Marriage Act’s voidability regime pull a family in opposite directions, should courts continue to decide on the factual matrix case by case or does the Parliament needs to align the two statutes? This piece argues for the latter. This erasure of consent occurs via a legal fiction in POCSO. Because POCSO treats the fact of the party’s minority as conclusive proof of harm, a minor’s stated consent has no legal weight: it cannot be raised as a legal defence, however genuine it may have been. In cases involving real child abuse, this absolute assumption makes POCSO a powerful instrument for protection: a predator cannot escape liability by claiming the child agreed. However, the same fiction when used without consideration to context, can turn a protective statute into an instrument that prosecutes the very relationship it was meant to shield including a marriage the minor herself, now an adult, wishes to preserve. Harmeet Singh and Limits of POCSO Harmeet was seventeen when a man who would become her husband, then twenty-two, was booked under Section 64(1) of the Bharatiya Nyaya Sanhita and Section 6 of the POCSO. The FIR was not lodged on her complaint, it was registered automatically after the doctors of the hospital, where she went to deliver their child, under an obligation under Section 21 of the Act had to report her age. By the time the case came to be heard by the Delhi High Court she had attained majority, married the man, and was raising her son with him. She did not file any complaint and neither did she consider herself a victim, she petitioned to have the FIR against her husband quashed. The court framed this issue concisely. She was a victim by operation of law (‘de jure’), but not a victim in fact (‘de facto’), and the strict interpretation of the law could have dire consequences to her family. The letter of the law does not provide any guidance and remains silent in this regard, the court turned to Joel Feinberg's idea of “Crime without a victim” which distinguishes between wrongs and harms, and explains how “not all wrongs are harms and not all harms are wrongs since a harm in the strict sense requires both a setback to interests of the person wronged and a violation of their rights.” In consensual adolescent relationships, the absence of the felt injury suggests that there is no actual harm to the minor. Even then the law disregards the minor’s consent, thereby transforming what could be a non-harmful experience into a crime of a very high degree. The PCMA Collision However, Family Law already offers assistance on this topic. According to Section 3 of the Prohibition of Child Marriage Act, 2006 (PCMA), any marriage where one of the parties is a minor at the time is considered as voidable and can be annulled by choice of the individual. The choice is with the girl; she may choose to annul or affirm the marriage within two years of them attaining the age of majority. Until then the marriage stands. POCSO and PCMA are not drafted to address the same question, and statutes with different aims can overlap each other without any real difficulty, what usually matters is simply which one governs a given fact pattern. The trouble here is that neither statute is drafted to defer to the other once they meet on the same facts, and there still lacks a harmonised consideration. PCMA gives Harmeet Singh two years after majority to decide in her own time whether her marriage should stand. POCSO's criminal process began the moment an intimate relationship did, and does not stop for that decision, because her decision was never the relevant question under Section 6 of POCSO. This is not a legal gap that mere interpretation can fill: it is a contradiction between a criminal statute drafted with an unmoving presumption and a family-law statute drafted to provide the minor with eventual agency, and neither Parliament nor the courts have ascertained which should yield. Two Statuses That Cannot Speak to Each Other This contradiction also has a definitional root. Section 2(2) of the POCSO refers to the CrPC and its subsequent version in the form of BNSS, under which the victim is defined as one who has “suffered any loss or injury caused by reason of the act or omission of the accused”. A literal reading of this definition raises a question about whether any harm was caused. POCSO is not concerned with this “harm” at all since Parliament made the sole fact of being a minor enough to conclusively prove harm, a choice that cannot be reinterpreted through judgements by a court. The consequence of this situation is that one and the same person can become a victim of crime as well as a legally married wife, two statuses that sit on separate legal planes and cannot cancel each other out. Her marriage is no defence to the criminal charge, and the criminal charge cannot undo her marriage. When Families Weaponize the Law However, there has been difference in opinion among the courts on how to handle this inconsistency. In situations where the de jure victim repudiates any damage suffered, and the couple later get married with an offspring involved, the courts have usually quashed proceedings to avoid re-victimization. This was observed in the ratio given by the Supreme Court in K. Kirubakaran v. State of Tamil Nadu and Mahesh Mukund Patel v. State of U.P, both involving couples who had married and were raising children by the time the matter reached the Court. On the contrary, some courts have declined to quash FIRs of similar nature on grounds that it constitutes judicial approval of child marriage, such as in Saivan v. State (NCT of Delhi), refusing to quash the FIR despite the parties’ subsequent marriage. Family Law’s calculus does not turn on criminal procedure, but POCSO’s does, and that is the problem the Apex Court identified in State of U.P. v. Anurudh, many of these cases protects no child at all. They instead convict the adolescents who enter into relationships which are disapproved of by the family, often casting the girl as a pseudo-victim regardless of her own personal choice. In Aman @ Vansh v. State of U.P., the Allahabad High Court pointed out repeated inconsistencies in the age of the prosecutrix for framing the man of a crime that didn’t exist. In the case of Sahil v. State (NCT of Delhi), the Delhi High Court noted the plight of young men caused mainly by the families of women who disapproved of their relationships and sought revenge for protecting their familial “honour”, irrespective of the absence of her “alleged” abuse. What the families cannot accomplish with PCMA through annulment, with custody, or matrimonial proceedings, they instead can accomplish via a criminal statute that requires neither the girl’s consent to prosecute nor her consent to withdraw. Why Parliament Must Act The importance of State of U.P. v. Anurudh lies in what it declined to do. The Supreme Court mitigated individual punishments based on the facts at hand, but it stopped short of reading a material or close-in-age exception into Section 6, because Parliament consciously chose not to make when it enacted POCSO. This choice was evident from the review of the POCSO Bill by the Parliamentary Standing Committee. Judicial mitigation, however sympathetic, cannot solve Harmeet’s problem: it can soften a sentence after conviction, but it cannot stop the FIR, the trial, or the criminal record from attaching to a relationship her own family wants preserved. What Parliament could do is narrower than it sounds. Partners for Law in Development have proposed to the Ministry of Women and Child Development a close-in-age exception for non-exploitative adolescent relationships, paired with a corresponding PCMA amendment. This piece endorses that structure, with an addition: the exception should operate procedurally, not just substantively. Rather than decriminalising an entire age band which risks under-protecting adolescents in genuinely exploitative relationships. Parliament could amend POCSO’s mandatory-reporting provision to give institutions such as hospitals a narrow, recorded discretion not to trigger an FIR where the parties are within a defined age band of each other, are already married, and the minor affirmatively states before a Child Welfare Committee, rather than the police, that she does not consider herself a victim. This keeps the irrebuttable presumption intact wherever a real age or power disparity exists, while routing a Harmeet-type case out of the criminal process at the point of first contact, rather than years later through a High Court’s inherent powers. It also lets PCMA’s voidability regime, which already asks the minor to decide her marriage’s fate within two years of majority, do the job Parliament assigned it. This is consistent with the developing-capacity principle in Articles 5 and 12 of the UN Convention on the Rights of the Child, which recognise that a child’s growing maturity should inform how far adults decide for her. Conclusion Harmeet Singh’s case is not really two statutes answering one question inconsistently. It is two statutes answering different questions, neither of which yields when both arise from the same facts. POCSO asks only whether a minor was party to a sexual act; PCMA asks only whether the minor, once grown, wants her marriage to stand. Parliament has not said which question should control when both are in play, so each High Court answers it afresh. Had the prosecution of Harmeet’s husband succeeded, her own considered choice under PCMA would have counted for nothing: her marriage would have survived in fact while her husband carried a criminal conviction, and her son would have grown up with a father recorded as a sex offender for an act his mother has never treated as a crime. Courts have tried to manage this through interim tools, the Delhi High Court’s own guidelines in Harmeet Singh, or the four-factor approach the Allahabad High Court sketched in Satish Alias Chand v. State of U.P., which asks judges to weigh the context and intentions behind the relationship, the age proximity between the parties, the absence of exploitative intent, and the exercise of judicial discretion before allowing a POCSO case to proceed against a settled couple. These tests do useful work at the margins, but they remain judicial workarounds for a legislative gap, applied unevenly across benches and available only to those who can reach a High Court. The durable fix is the one only Parliament can supply: a narrow, recorded exception to mandatory reporting for close-in-age, non-exploitative relationships, paired with reform of PCMA’s voidability window, so that a family like Harmeet’s does not depend on which bench hears its case, or on being able to afford one, to survive. *Anant Sharma is a second- year law student pursuing B.Sc. LL.B.(Hons.) at Gujarat National Law University, Gandhinagar. *Disha Joshi is a second- year law student pursuing B.A. LL.B.(Hons.) at Gujarat National Law University, Gandhinagar. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Utkarsh Chaudhary Introduction The judgment of NALSA v. Union Of India (2014) opened the previously shut doors to the legal recognition of non-binary genders in India. With this recognition, many legal and societal challenges came, the most prominent being the structural exclusion of non-binary genders from inheritance rights, which are sometimes recognised as basic rights. Around 85% of the property in India is acquired through inheritance. This leaves the already poor and marginalised transgender community in a financially vulnerable situation. In most cases, the transgender identity of a person is not accepted by their own family, and they are forced to face exclusion, which severely affects their already poor monetary condition. To compound the crisis, over 96% of transgender persons face systematic discrimination denying them employment, shutting the doors to achieve financial independence. Absence of inheritance rights aggravates their financial constraints, forcing many to resort to begging and sex-work and also compelling them to indulge in criminal activities or find low-wage jobs in the informal sector. Indian courts have delivered several progressive judgements, including Navtej Singh Johar v. Union Of India and Supriyo v. Union Of India. These rulings have underpinned the right to be recognised and right to choose marriage partners and have also acknowledged the struggles faced by the non-binary genders. None of the judgements have adequately addressed the lack of inheritance rights of the transgender community and the legislation has also failed to address this issue. History of structural exclusion from Inheritance: ancient texts and colonial laws In NALSA v. Union Of India 2014, the Supreme Court highlighted that prior to the colonial rule, transgenders were treated with respect, and they also occupied respectable positions in society, but the judgment fell short of shedding light on the position of transgenders in Dharmashastric laws on inheritance. The Shastric laws do not confer any inheritance rights upon transgenders, exposing the cis-heterosexual approach of the laws and structural banishment of the community from ownership of property. In Chapter-Inheritance, line.32-34 of the Vishnu Smriti states that “Eunuchs” cannot claim rights in the property. In accordance with the Manusmriti translated by G. Buhler chapter 9, line 201, prohibits transgender persons from receiving a share in the inheritance. Though there is no direct and established relation between the word “Eunuch” and modern day definition of transgender but position of “eunuchs” under Hindu laws enables us to consider the status of transgender who were excluded from both statutory application of laws and claiming inheritance rights. Many other Dharmashastric texts, including Yajnavalkyasmriti, display the same predicament as above regarding the inheritance rights of non-binary genders as observed by court in Sweety (Eunuch) v. General Public. The aforementioned ancient texts expose the deep-rooted exclusion of non-binary genders from claiming share in property and viewing homosexuality as a deformity. During colonial rule the condition of the transgender community worsened as British colonial laws were heavily influenced by the Victorian version of morality. Whereunder the nonconformity to heterogeneous sexuality attracted severe punishment and social stigmatisation. As a result of it, registration of transgender community under draconian and discriminatory Criminal Tribes Act 1871 and labelling the whole community as “habitual offenders” and “born criminals” subjected the community to state-sanctioned surveillance and loss of livelihood. Also, the irreparable injury by Section 377 of the Indian Penal Code, 1860, criminalising any homosexual activities, made the community an easy target for unnecessary profiling by law enforcement agencies. In many cases forcing them to conceal their true individuality that severely affected their self-identity. Interpretations by colonial courts placing the heterosexual concepts at the centre of the dharmic inheritance laws of the Hindus and, again, pushing trans people’s rights into oblivion. Various High Courts made the mistake of linking inheritance in Dharmashastric laws to an ability to enter into heterosexual marriage, as held in the case of Amirthammal v. Vallimayil Ammal. In Krishna v. Sami, the Madras High court connected the inheritance right with the ability to transmit heritable blood, thus systematically disqualifying non-binary genders from claiming inheritance. Cis-heterosexual nature of the Hindu Succession Act The Hindu Succession Act, 1956 was passed as legislation which covers the inheritance rights of not only Hindus but Sikhs, Jains and Buddhists. It is categorised as centred around the heterosexual understanding of marriage, blood-relationships, kinship and other relations. The inheritance rights are also tied around this same heterosexual understanding, showcasing the Act’s inability to address homosexual relationships. Section 3(f) of the Act confines the definition of “heir” to only male and female genders, making only binary genders entitled to inherit property under this Act. Moreover, Section 8 and Section 15 give us rules regarding succession in case of death. Treating Hindu males and females in different ways regarding transfer of property in the event of death. Section 8(a) states that in case of death of a male Hindu, his property would be transferred to Class I heirs specified in the schedule, which includes the male’s mother and lineal descendants. In the absence of Class I, the inheritance rights will be conferred upon Class II heirs, including the father, siblings, lineal descendants of siblings and siblings of the deceased male’s father. In Section 15, it directly states the relatives who are entitled to inherit the property in case of death of a Hindu female. Section 15(1)(a) confers first-priority inheritance rights on the deceased's children alongside her husband. Heirs of her husband form the second-priority category under Section 15(1)(b), applicable only in the absence of children and husband. Now the problem arises in the case where a transgender person is born as a female but identifies himself as male, provided he has no children. If his identity is to be taken from the gender assigned by birth (female), then after the person’s death, their spouse's heirs will be entitled to the share, and if the person is identified as male, an entitlement will go to Class I heirs, i.e. their mother. This will leave a person's identity vulnerable to arbitrary decisions on how he/she is perceived. Ray of hope - Judicial progress in the midst of legislative silence Although there is a lack of statutes providing inheritance rights to the non-binary gender. In recent years the Supreme Court and various High Courts have passed many progressive judgments which set the way for future laws recognising their rights. NALSA v. Union of India gave recognition to transgender people and Navtej Singh Johar v. Union of India, decriminalised homosexual relationships and, in Arunkumar v. Inspector General of Registration, a trans-woman was brought under the definition of bride by the Madras High Court. All such examples show the progressive steps undertaken by the Indian judiciary towards allowing transgenders to exercise equal rights and self-determination. India is also a signatory to the Universal Declaration of Human Rights (1948) and UN Charter,1945.“Right of choice”, a right constituting an indissoluble part of fundamental rights promoted by these charters. This puts an obligation to develop a legal framework that allows them to realise their full potential and shields them from economic and social hardships. Article 14 and Article 15(1) of The Indian Constitution guarantees equality and removes discrimination on grounds of sex, this mandates the legislation to remove arbitrary and the discriminating laws which directly or indirectly denies succession rights on the basis of gender identity. In NALSA v. Union Of India, the Supreme Court laid the ground for the right to self-identity of one’s gender under Article 19(1) and further reasoning that this article is gender-neutral and applies to all persons equally. This prohibits any legislature forcing a trans person to align to binary gender thus, anchoring inheritance rights with right to self-determination. Article 21 guarantees the right to life and personal liberty which extends to living life with dignity. The right to choose one’s gender without facing any discrimination is also an integral part of Article 21 thus, mandating the government to remove obstacles subjecting a person to discrimination based on his gender choices. In 2019, legislation passed the Transgender Persons (Protection of Rights) Act, 2019, where Section 3 of the Act prohibits all kinds of discrimination regarding buying, renting, or occupying any property against the transgenders. Nevertheless, the Act itself falls short of addressing the inheritance rights thus, failing to provide any substantive remedy for this issue. A separate legislative framework that specifically deals with the succession rights will let parliament define relations and heirs of trans-person instead of forcing them to conform to binary genders. As transgenders in India are a diverse community having different customary kinship structures and inheritance framework, these customs need to be recognised rather than forcing the community to subject to any legislatures dealing with succession rights of any particular religion. Customs of the trans community have been upheld in Sweety (Eunuch) v. General Public where the court granted succession rights on the basis of “Guru-chela”customs paving way for such decisions and policies in future. Comparatively, Nepal has given recognition to inheritance rights of third gender in Sunil Babu Pant & ors v. Nepal Government. Another neighbouring Pakistan has also recognised in Khaki v. Rawalpindi that transgenders also possess constitutional rights like inheritance rights and right to life. As these countries have shared history and traditions with India, these examples offer a comparative jurisprudential basis to associate inheritance rights of transgenders to constitutional values providing millions with necessary rights. Conclusion The trajectory mapped above reveals that the discrimination against transgenders in the Hindu inheritance laws is not incidental, but is a result of centuries-old bias against the trans-people in Dharmic laws. The exclusion under Dharmashastric laws hardened over time, and this deepened even more during colonial times as penal laws and other binary institutions reinforced the same gender biased hierarchies. This bias has even found its way in the laws of modern independent India. After the aforementioned landmark judgments of the Supreme Court, the exclusion of non-binary genders from ancient times has lost constitutional validity. Now, the onus lies on the Parliament to break away from these centuries-old binary gender notions by introducing legislation that cements their inheritance rights and including non-binary viewpoints in the Hindu Succession Act, 1956, enabling two million transgender people to exercise their right to inherit property, and achieve the economic and social justice that the Constitution promises them. *Utkarsh Chaudhary is a second- year law student pursuing B.A. LL.B.(Hons.) at Dharmashastra National Law University, Jabalpur. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

*Vertika Kashyap “They say it is love. We say it is unwaged work … By denying housework a wage and transforming it into an act of love, capital has killed many birds with one stone.” - Silvia Federici, Wages against housework There is a strange lop – sidedness clutched deep in Indian family law. When a homemaker dies in a car accident, the courts quantify economic value of the labour she performed throughout her life in rupees. This labour encompasses the acts that sustain a home including child rearing, cooking, cleaning, and the countless other tasks involved in managing a household. The courts then award compensation to the deceased's family for the loss resulting from the death. In contrast, if the same homemaker survives and seeks a divorce, the same legal system refuses to recognise that labour as creating any proprietary entitlement. She isn’t given rights in the matrimonial property that her unpaid labour helped build. Moreover, she has to prove the urgency and actual need to claim maintenance which is a mere consolation that can never truly substitute for a woman’s entitlement to equitable share in the matrimonial home. This is not an inadvertent convergence but a legal paradox that exposes how the law inherently views the contribution of a woman’s unpaid labour in her marriage. This paper seeks to establish how this valuation paradox is not merely a doctrinal inconsistency, but a structural feature of the Indian family law reflecting entrenched patriarchal and capitalist notions. Henceforth, laying down that only a statutory, contribution-based matrimonial property regime can resolve it. The Paradox Stated: What Tort Law Already Concedes Indian tort jurisprudence has evolved over the last two decades, moving decisively towards recognising the economic value of unpaid domestic work. In Lata Wadhwa v. State of Bihar, the Supreme Court assigned ‘notional income’ to the services rendered by the deceased homemakers while calculating the compensation payable to their dependants. Notional income refers to a judicially estimated monetary value assigned to a work that does not generate formal wealth or income. The reasoning behind this, fortified the claim that a homemaker’s labour cannot be treated as economically worthless merely because they were unpaid. Furthermore, in Arun Kumar Agrawal v. National Insurance Co. Ltd., the Supreme Court explicitly criticised exclusion of housework from national income accounting and calling out the undervaluation of women’s domestic contribution as a matter of “genuine survey and assessment.” Most significantly, in Kirti v. Oriental Insurance Co. Ltd., the Supreme Court (per Dr. D.Y. Chandrachud J.) rejected the long-standing assumption that a homemaker’s labour is economically worthless and held that that a notional income, based on the applicable minimum wages, should be assigned to a deceased homemaker’s work while determining compensation under the Motor Vehicles Act, 1988. The court in above mentioned precedents, has recognized that unpaid domestic labour is productive and economically valuable. However, this recognition does not appear to extend to family court proceedings where domestic labour receives limited consideration in determining financial relief which is discussed in the next section. Unpaid Domestic Labour and the Limits of Family Law Maintenance remains a need-based remedy rather than a proprietary entitlement. The rationale underlying Section 144 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (earlier Section 125 of the Code of Criminal Procedure, 1973) was to prevent vagrancy and destitution among abandoned and divorced wives instead of redistributing wealth earned jointly through paid and unpaid labour. Similarly, Section 25 of the Hindu Marriage Act, 1955 directs courts to consider “the income and property of the applicant and respondent,” while determining permanent alimony. This approach primarily focuses on the financial circumstances of the parties rather than expressly recognising wife’s contribution, including unpaid labour, to the accumulation of the matrimonial resources. This distinction is significant because treating maintenance merely as a means of preventing financial hardships risks reducing the economically weaker spouse to the position of a dependent rather than recognising their contribution to the household’s wellbeing. Moreover, a spouse who withdraws from or limits paid economic work to undertake childcare and domestic responsibilities incur substantial opportunity costs including loss of income, professional growth, savings and social security benefits among many others. Consequently, the absence of a direct mechanism for valuing such labour can produce an apparent neutrality in matrimonial law which reproduces existing economic disparities. In Rajnesh v. Neha, the Supreme Court took a meaningful step by recognising that “sacrifices made in the interest of the family” should be weighed while fixing maintenance. This framing is charitable because it interprets the sacrifice as a voluntary service rather than as a rightful claim. Justice operates on reciprocal rights and duties. However, Charity works on supererogation and is concerned with benefits that are conferred beyond what is morally or legally owned. Accordingly, the Court's use of the word ‘sacrifice’ may inadvertently impose a charitable framing by portraying unpaid domestic labour as an act of selflessness rather than recognising it as a basis of legal entitlement. Consequently, the recognition does not turn into a proprietary claim over matrimonial assets and remains subjected to judicial decision with no statutory formula as that adopted in Kirti. The Protection of Women from Domestic Violence, 2005 was a genuine advance in naming “economic abuse” as a form of violence under Section 3, Explanation I (iv) of the Act. It covers the deprivation of financial resources as well as the right to reside in a shared household. The Act’s economic relief provisions are merely compensatory in nature to prevent dispossession. They do not determine what share of the household’s accumulated assets a woman is entitled to because of the labour she performed. The Act protects a woman’s right to reside in the home; however, it does not recognise her as a co-builder of the wealth within it. Perhaps most tellingly, Indian family law, barring Goa as the sole exception, has no default matrimonial property regime. Assets typically remain in the name of the purchaser, which in the given patriarchal setup is most often the husband. According to NFHS data only 13 percent of women have a sole ownership of their house. The Marriage Laws (Amendment) Bill was passed by the Rajya Sabha in 2010. Unfortunately, allowed to lapse, the law had proposed a compensation mechanism which was tied to a wife’s share in immovable matrimonial property upon divorce on the ground of irretrievable breakdown. The lapse was mainly attributed to its concerns about opening floodgates of litigation and disputes over ancestral property. Consequently, India squandered its one legislative opportunity to formally recognise non-financial contribution as a basis for a proprietary right. Goa, being a fortunate exception, is governed by Portuguese Civil Code of 1867. The provisions establish a default “communion of assets” regime. It refers to a regime in which all property acquired during the marriage is presumed to be part of the joint matrimonial estate. It has demonstrated that a contribution based joint ownership of matrimonial assets is neither culturally alien to India nor domestically un- administrable. Feminist Perspectives on unpaid labour and economic entitlement Feminist scholars have provided vocabulary to this paradox; Fraser’s theory on division between redistribution (of resources) and recognition (of status and identity) best illustrates this concept. India’s tort law has however progressed towards recognising the dire economic reality of unpaid domestic labour of women, the acknowledgement largely remains very symbolic in nature. There is no potent implementation model to execute the proprietary right that a woman is rightfully entitled to. Consequently, her labour is only validated symbolically and has no actionable claim. This does not exist in vacuum and has a long sociological history. In Social Reproduction Theory, labour is portrayed as only the paid market work and it is done so in order to secure a deliberate free economic subsidy for capital and the state. The deeply intertwined patriarchal capitalist state at play naturalises the domestic work as “labour of love” or a moral duty. As popularised through the historical Wages for Housework Campaign Archive, this enables the market to externalise the costs of maintaining households and reproducing the workforce onto women. Society benefits from this unpaid labour, yet does not grant women their independent monetary entitlement. Three objections deserve serious engagement. First, that a contribution-based property regime would open the “floodgates” of litigation and complicate valuation of unpaid domestic labour. While this is a real administrative concern it is not a reason to abandon the project. Courts have already performed comparably complex valuations in Kirti and its subsequent judgements using minimum-wage benchmarks and Time Use Survey data. The same methodology with more nuance can be transposed in matrimonial property division. Second, one would argue that legislating on property would risk eroding marriage as a sacred institution and commodify the same. However, it must be kept in mind that this objection assumes that viewing labour as labour destroys its emotional meaning, which is already refuted by feminist scholars on substantive economic and political arguments. Third, that the existing maintenance laws, especially post-Rajnesh, already achieves rough justice through judicial discretion. Yet, the same discretion is problematic when it exists without a solidified statutory entitlement. It risks being unequal as the judgement would vary with the judges hearing the case, the region in which it is decided and the woman’s ability to litigate. Towards Reform Three concrete steps would close the paradox which quantifies a homemaker’s unpaid labour and compensates her heirs for its loss after death, but refuses to recognises the same labour as creating any proprietary entitlement in her matrimonial property. First, Parliament should revive and enact a version of the lapsed Bill. It would establish a statutory presumption of equal contribution-weighted division of assets acquired during marriage, modelled on Goa’s existing Communion of Assets model. Second, maintenance guidelines under Section 144 BNSS and Section 25 HMA should be amended requiring courts to apply a notional-income methodology analogous to Kirti, using Time Use Survey benchmarks so that maintenance amount also keeps in the contribution of unpaid labour and not just the lifestyle of the husband. Third, the definition of “economic abuse” under the Domestic Violence Act should explicitly include when a woman is denied shares in the economic assets she helped in building through her unpaid labour. Conclusion The foregoing analysis demonstrates that Indian legal system possess the conceptual and methodological tools to assign economic value to unpaid work. Tort law has demonstrated that courts can quantify domestic labour from Wadhwa to Kirti. The inconsistency, therefore, does not lie in Law’s incapacity to value domestic labour but in its reluctance to extend the same rationale to family law. Until the suggested reforms are taken, the legal recognition of unpaid labour is likely to remain uneven. Although Indian Courts have increasingly acknowledged its economic value, that recognition will continue to be more robust in compensation claims than in the determination of proprietary rights upon dissolution of marriage. *Vertika Kashyap is a second- year law student pursuing B.A. LL.B.(Hons.) at Chanakya National Law University, Patna. The views expressed above are the author's alone and do not represent the beliefs of Family Law Chronicle: The CFL Blog.

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

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