India: Family Law Comparative Guide

1 Legislative framework

1.1 Which main sources of laws and regulations govern matrimonial and family law matters – including, but not limited to, divorce, judicial separation, children's matters and financial matters arising from the breakdown of marriage – in your jurisdiction?

Marriage and dissolution of marriage: India is a secular country with diverse religious and cultural practices. Some of the prominent religions practised in India include Hinduism, Islam, Jainism, Christianity and Sikhism. Their matrimonial ceremonies are mainly governed by personal religious practices; therefore, it is the personal laws and traditions of each religion that form the core source of law for matters pertaining to divorce, custody and finance.

Secular legislation has also been promulgated which applies to all persons of all religions, called the Special Marriage Act, 1954. This act is a civil statute and parties from all religions, castes and/or communities can elect to marry under this act. Any subsequent breakdown of the marriage will then be governed by this act. All these laws are central acts and apply throughout India, with few amendments in the respective states.

Other statutes that regulate marriage for different religions include:

• the Parsi Marriage and Divorce Act, 1936;
• the Indian Christian Marriage Act, 1872; and
• the Muslim Marriages Act, 1939 – although certain issues relating to Muslim marriages remain uncodified.

Matters relating to the custody of children: Every statute governing marriage lays down provisions to ensure the welfare of children born in wedlock. A general law called the Guardian and Wards Act 1890 applies to all communities. The Guardian and Wards Act 1890 is a complete code defining the rights and liabilities of guardians and wards. It applies to minors of any caste and creed; although, in approving and declaring a person to be the guardian of a minor, the court will also take into consideration the personal law of the minor. The act was promulgated with the aim of protecting the person and property of minors. Therefore, it is correct to state that the court must prioritise the welfare of the child as paramount when deciding disputes relating to child custody and similar.

Further, the Indian courts exercise parens patriae jurisdiction, which means that the court will assume itself to be a de jure and de facto guardian of a minor if the need arises.

1.2 Which bilateral or multinational instruments have application in this regard in your jurisdiction?

The laws pertaining to child custody and welfare are in consonance with international standards and norms; however, the domestic laws remain the primary source of remedies.

The Hague Convention on Civil Aspects of International Child Abduction 1980 is an international treaty that establishes rules on the resolution of child custody disputes across borders. India is not a signatory to the convention; however, the Indian regime specifically provides for the same remedies through domestic laws. For instance, with respect to the concept of 'child removal' from one state to another, the aggrieved party has a remedy under Articles 32 and 226 of the Constitution by seeking a writ of habeas corpus, which is considered to be the fastest remedy available to restore the custody of a minor to a parent who claims to be his or her lawful guardian. This remedy can also be availed of under the Hindu Minority and Guardianship Act, 1956, which has extraterritorial application for parents seeking guardianship rights for their child.

The Supreme Court held in Nithya Anand Raghavan v NCT of Delhi that the court into whose jurisdiction a child has been brought will ordinarily consider the matter on the merits, bearing in mind the welfare of the child, and thereby will examine a foreign order. The court is not bound to return the child to a foreign country from which he or she has been removed if it believes that this would not be in the best interests of the child.

Recently, in Nilanjan Bhattacharya v State of Karnataka (2020 SCC OnLine SC 928), the Supreme Court held that the repatriation of a minor to his or her native country can be directed after he or she was brought to India even if there was no pre­existing order of the foreign court when the child was brought to India, as the child was a habitual and ordinary resident of the country from which he or she was removed. Therefore, where a child has been removed from his or her native country to India, it will be in the best interests of that child to return him or her to his or her country of origin.

Thus, the repatriation of a minor who has been abducted or removed from his or her place of ordinary or habitual residence can be determined from the given facts and circumstances. Accordingly, the parents can exercise their rights as per the law laid down in India.

Indian statutes include specific provisions that emphasise the welfare of the child as a paramount consideration. This extends to interpreting the situation in the way that:

• would best serve the interests of the child; and
• accords with international standards.

Thus, while domestic laws govern matters relating to divorce and child custody, international standards and the principles of comity of nations and courts are duly followed.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations in your jurisdiction? What powers do they have? What is the general approach of these bodies in enforcing the applicable laws and regulations?

The applicable statutory and regulatory framework for marriage and other family matters is administered in India by the family courts or civil courts with competent jurisdiction. They operate within the ambit of the Family Courts Act, 1984 and the procedure as stipulated by the Code of Civil Procedure, 1908. The act aims to provide for a common, integrated judicial forum for all matters concerning marriage, divorce, custody, maintenance and so on. Several recommendations for the establishment of special judicial infrastructure for the settlement of family disputes were made following:

• the 59th Report of the Law Commission in 1974; and
• the Report of the Committee on the Status of Women in 1975.

The jurisdiction of the family court is laid out in Section 7 of the act, which empowers it to address any suit regarding:

• a declaration of nullity;
• divorce or judicial separation;
• maintenance;
• restitution of conjugal rights;
• a declaration of legitimacy;
• property of the parties to the marriage; or
• guardianship, custody and access to minor children.

The court is also authorised to issue any order or injunction in a "circumstance arising out of a marital relationship". Recently, in Avneet Kaur v Sadhu Singh (2022/DHC/2453), the Delhi High Court interpreted this provision expansively to allow parents in law also to bring a suit before the family court.

The Family Courts Act also enshrines a progressive approach by:

• emphasising confidentiality (Section 11);
• strengthening the role of marriage counsellors and medical/welfare experts (Sections 5, 6 and 12); and
• relaxing the standard rules of evidence (Sections 14-16).

It also attempts to depart from an adversarial system by encouraging mutual resolution and amicable settlement (Section 9)

However, this radical ambition of the legislation does not seem to have been realised, as its implementation to date has been rather lacklustre. Several salient actors in the process – including judges and counsellors – are often overzealous in attempting to preserve marriages against the will of the parties, since the act promotes reconciliation and settlement. Further, the integration of criminal matters (eg, matters relating to maintenance under Section 125 of the Criminal Procedure Code) and civil cases that fall within the overarchingly wide and notably undefined category of 'family' matters has overburdened the judicial infrastructure to the brink of collapse.

1.4 Can foreign judgments and orders be enforced in your jurisdiction and if so how?

There are bilateral treaties which specify 'competent jurisdiction'. It signifies that the courts in the signatory nations are competent courts and the judgment and orders passed by such courts would be enforceable in India, however it has to adhere to Section 13 and Section 14 of the Code of Civil Procedure, 1908:

Section 44 (a) deals with execution of the judgments/ orders passed by Foreign Courts of competent jurisdiction.

The questions with respect to enforceability of foreign judgements has been adjudicated by courts in India. There is no specific provision in matrimonial enactments on enforcement of foreign orders by Indian courts to make orders following a foreign order of divorce or annulment of marriage. Further it is settled in India that if the issue of financial orders has not been adjudicated by a foreign court, it may be agitated in appropriate proceedings in India.

In order to decide the efficacy of any foreign judgement in India, the courts evaluate if the case has been decided on merits. In Satya v. Teja Singh 1975 1 SCC 120. where the Respondent had misrepresented facts with respect to their place of residence, thus, the Indian court held that the jurisdiction of foreign court had been negated rendering the decree invalid. The expression 'decision based on merits' implies the application of judicial mind of the court regarding the truth and falsity of the matter.

Furthermore, Section 13 of the Code of Civil Procedure incorporates the principles of rule of law in a common law country giving due consideration to the comity of nations and courts while ensuring that the decision of the foreign court should be in consonance with natual justice and an adjudication on merits and it entails that courts of a particular jurisdiction will recognize and give effect to judgements of courts of other jurisdiction out of deference. The provision states that a foreign judgement holds validity when it is passed by a court of competent jurisdiction, case has been decided on merits, it is not obtained by fraud and it is not in opposition of natural justice.

Foreign judgments and orders can be enforced in Indian jurisdiction, but the duration for which they can be enforced is subject to the limitation period prescribed under Indian law.

2 Jurisdiction

2.1 What are the jurisdictional requirements for the domestic courts to handle matrimonial and family law matters? How do the parties satisfy the courts of such requirements?

The jurisdictional requirements for the domestic courts to handle matrimonial and family matter are ordinarily specified in the relevant legislative enactments.

For example, in the case of a marriage between Hindus, Section 19 of the Hindu Marriage Act, 1955 deals with the territorial jurisdiction of petitions filed under the act.

The Section 19 of the Hindu Marriage Act enables both parties to have convenience for contesting the matrimonial petition. Now, district courts as provided in Section 19 of the Hindu Marriage Act means 'family courts' (after the introduction of the Family Court Act, 1984). The family courts were established under the Family Courts Act in order to promote conciliation in, and ensure the speedy settlement of, disputes relating to marriage and family affairs. Similarly, for each kind of matrimonial dispute (eg, dissolution of marriage, child custody), the legislative requirements for jurisdiction must be complied with.

2.2 What are the legal principles governing disputes on competing jurisdictions and what are the determining factors for the court when considering such disputes?

The legal principles governing disputes on competing jurisdictions primarily revolve around the concept of jurisdiction and the relevant laws and procedures to determine which court has the authority to hear and decide a particular case. They include the following:

• Territorial jurisdiction: The territorial jurisdiction of a court determines whether a particular court has the authority to hear a case based on the geographical location:
• • where the cause of action arose; or
  • where the parties involved reside or carry on business.
• It is usually the first factor considered in determining jurisdiction.
• Subject-matter jurisdiction: Certain cases may fall under the exclusive jurisdiction of specific courts or tribunals based on the nature of the dispute. For example, family disputes may be heard by family courts, while IP disputes may be heard by specialised IP tribunals.
• Conflict of laws: In cases involving multiple jurisdictions, the courts may apply conflict of laws principles to determine which legal system's rules should govern the dispute. These principles aim to avoid conflicting judgments and promote fairness.
• Res judicata: Once a court has decided a matter, the doctrine of res judicata prevents the same parties from re-litigating the same issues in another court. This principle helps to avoid multiple legal proceedings on the same matter.
• Transfer of cases: If a court finds that it does not have jurisdiction, it may transfer the case to the appropriate court with jurisdiction. This ensures that cases are heard in the correct forum.
• Appellate jurisdiction: The hierarchy of courts in India also plays a significant role in disputes on competing jurisdictions. Higher courts can review and correct decisions of lower courts if they find jurisdictional errors.
• Public policy: In some cases, courts may consider the public interest or public policy when deciding jurisdictional issues. They may decline jurisdiction if:
• • it would be against the public interest; or
  • hearing the case would violate established principles of justice.
• Foreign judgments: India recognises foreign judgments subject to certain conditions and exceptions. However, the enforcement of foreign judgments is governed by specific rules and parties may need to go through a separate legal process to enforce such judgments.
• Judicial precedents: Decisions of higher courts in India – especially the Supreme Court – set precedents that lower courts are generally bound to follow. These precedents can guide the determination of jurisdictional disputes.

The determining factors in considering jurisdiction in matrimonial disputes include issues such as:

• where the parties are residing; and
• under which statutes they are governed.

3 Relationships and co-habitation,

3.1 Are there any laws and regulations protecting same-sex and/or co-habiting couples in your jurisdiction? If so, what are they?

Same-sex and cohabiting couples/unions are not legally recognised in India. The Indian legal system offers no protection to these couples; although equally, there is no prohibition or penalisation of same-sex unions. Although same sex-marriages or civil unions are not criminalised, they are also not legally recognised under Indian law, thereby depriving such couples from any rights which flow from a marriage and a family.

In 2014, in National Legal Services Authority v Union of India, the Supreme Court recognised non-binary gender identities and upheld the fundamental rights of transgender persons in India. In this case, it interpreted 'sex' as including both 'sexual orientation' and 'gender identity', which essentially extended the protection of Article 15 to the LGBTQ+ community. Subsequently, in September 2018, in Navtej Singh Johar v Union of India, the Supreme Court decriminalised homosexuality by striking down Section 377 of the Penal Code, 1860; as a consequence, several lawsuits were filed across the nation seeking equal marriage rights for same-sex couples. On 6 January 2023, a three-judge bench of the Supreme Court, led by the chief justice of India, directed that all petitions pending before different high courts concerning the issue of same-sex marriage be transferred to the Supreme Court; these were subsequently referred to a five-judge Constitution Bench. The oral hearings in this matter began before the Constitution Bench on 18 April 2023 and concluded on 11 May 2023. Judgment is awaited in the same.

3.2 Do co-habiting couples have any rights in the event of the breakdown of the relationship? On what grounds can they exercise those rights?

In India, there is no categorical provision that gives legal validity to the relationships of cohabiting couples. However, the law has evolved through a series of judgments passed by the Supreme Court and other state high courts which, among other things, entitled the parties to certain relief in the event of the breakdown of their relationship.

In 2011, the Supreme Court observed in Chanmuniya v Virendra Kumar Singh Kushwaha that if the court is satisfied that a couple were living together in a long-term voluntary relationship akin to marriage, the woman will be entitled to claim maintenance from her partner in case of the breakdown of the relationship.

Further, in Indra Sarma v VKV Sarma, the Supreme Court deliberated on the concept of a live-in relationship. The court observed that the definition of a 'domestic relationship' under Section 2(f) of the Protection of Women from Domestic Violence Act 2005 refers to living together in a shared household, which includes live-in relationships, thus extending protection under the act to women cohabiting in a live-in relationship akin to marriage.

It has been clarified that the law does not protect women who are living in an adulterous relationship. For a relationship to be considered legitimate, it is of paramount importance that both adults be unmarried.

The Indian courts also extended the right to inherit property of a deceased partner to a woman in a live-in relationship in Dhannulal v Ganeshram. It was held that where a man and woman have been living together as husband and wife, this will be presumed to be a valid marriage.

Furthermore, children born out of a live-in relationship have also been determined to be legitimate. In Balasubramanyam v Suruttayan, the court held that a couple cohabiting under the same roof for a considerable number of years will be presumed and considered as legitimate under Section 112 of the Evidence Act 1872, which provides as follows:

Thus, it may be concluded that India has sufficiently accepted live-in relationships and has extended all rights to cohabiting couples that are available to married couples.

3.3 Can co-habiting couples formalise their relationship in your jurisdiction (eg, through a civil partnership or similar)?

The matrimonial statutes in India have no categorical provisions through which co-habiting couples can formalise their relationship (eg, civil partnership). The concept of live-in relationships is relatively new in India and is gaining prominence through judicial precedents. Cohabiting couples have certain rights akin to married couples which can be claimed through the courts; however, there are no specific provisions to formalise their relationship. It is only through a marriage ceremony and rituals that a live-in relationship can be converted into a valid and legal marriage.

Live-in relationships in India have been recognised through judicial precedent. The Supreme Court has categorically observed that the right to cohabit with a person of one's choice is protected by Article 21 of the Constitution.

In Madan Mohan Singh v Rajni Kant, the Supreme Court held that a live-in relationship is legal and is not a criminal offence – although it may be considered immoral in some parts of the country.

In Chanmuniya v Virendra Kumar Singh Kushwaha, the Supreme Court observed that if the court is satisfied that a couple have been living in a long-term voluntary relationship akin to marriage, the woman will be entitled to claim maintenance from her partner in case of the breakdown of the relationship.

There is no mechanism to formalise a live-in relationship similar to a common law marriage in India, irrespective of the duration of the cohabitation.

3.4 Are foreign civil partnerships, same-sex marriages or similar recognised in your jurisdiction? What requirements and restrictions apply in this regard?

India's legal framework concerning marriage is governed by various personal laws, which are largely based on religion. For example, the Hindu Marriage Act, the Muslim Personal Law and the Christian Marriage Act govern the marriages of individuals belonging to these respective religious communities. None of these laws allows for same-sex marriage.

Furthermore, foreign same-sex marriages or civil partnerships are not recognised in India. Even if a same-sex couple marry or enter into a civil partnership in a country where this is legally recognised, the union will not be considered valid under Indian law. The Supreme Court is currently adjudicating on the recognition of same-sex marriage in India.

4 Marriage

4.1 What is considered a legal and valid marriage in your jurisdiction?

Marriages in India are solemnised and recognised under various personal laws, as codified under laws such as:

• the Special Marriage Act, 1954; and
• the Foreign Marriage Act, 1969.

A valid and legal marriage is one that has the sanction of the law and is recognised by it.

Hindu marriage: In the case of Hindus, Sikhs, Jains and Buddhists, Sections 5 and 7 of the Hindu Marriage Act 1955 encapsulate the essentials for a legal and valid marriage, as follows:

• The bridegroom must be at least age 21 and the bride must be at least age 18 at the time of marriage; and
• Both parties to the marriage should comply with the following conditions:
• • They should not have a living spouse at the time of the marriage;
  • They should not be of unsound mind which prevents them from giving valid consent to the marriage;
  • They should be mentally fit for marriage and procreation;
  • They should not suffer from recurring attacks of insanity or epilepsy;
  • They should not be within the degrees of a prohibited relationship, unless the customs and laws governing them permit marriage between them; and
  • They should be in the same sapinda (a person considered in relation to any of his or her three or sometimes six nearest lineal male ancestors or descendants) or gotra (a Hindu clan tracing its paternal lineage from a common ancestor) as each other.

While these principles are laid down in the Hindu Marriage Act, it does not specify any binding ceremonies to constitute a legal and valid marriage. Section 7 states that the marriage should be solemnised as per the customs, rites and ceremonies integral to either party to the marriage. A Hindu marriage entails saptapadi (seven steps) and invocation before the sacred fire.

Muslim marriage: Marriage under Muslim law is known as nikah. This is an Arabic word which means 'the union of two people'. Baillie's Digest defines a 'Muslim marriage' as a contract that legalises sexual relationships and procreation; on the other hand, in the Hedaya (a guide on Islamic law), 'nikah' is defined as carnal conjunction in its primitive sense. The prophet of Islam said that marriage constitutes one of his sunna (ie, the practices of the Prophet Muhammad), and his followers must obey his practices and follow them properly.

Legally, a Muslim marriage is a civil contract because it has similar characteristics to a contract: as with a contract, there is a proposal (ijab) by one party and acceptance (qubul) by the other party. In a contract, free consent plays an important role. Similarly, there can be no marriage without the consent of the parties; and such consent must not be obtained through fraud, coercion, force or undue pressure. The terms of marriage in the nikahnama can be altered according to the wishes of the bride and groom, but it must be within the limits of the law. In Abdul Kadir v Salima, it was held that Muslim marriage is a contract and not a sacrament.

4.2 Does your jurisdiction recognise common law/de facto marriages as valid marriages?

Some countries recognise a common law marriage – in which a couple live together for a long time without participating in any ceremony – as a de facto marriage which is primarily built by habit or repute. This refers to a legal framework under which a couple may be considered married without having formally registered their relation as a civil or religious marriage – for instance, through a live-in relationship.

In India, no such relationship – however long its duration – is recognised as a marriage without a legal ceremony; there is no categorical provision that gives legal status to common law marriages. However, the law has been developed through a series of precedents on this matter. In the landmark case of Tulsa v Durghatiya, a couple's 50-year-long live-in relationship was legally recognised by the Supreme Court. The court held that it may presume the existence of a fact which it thinks likely to have occurred. It has been unequivocally held that a strong presumption will lie in favour of wedlock.

In D Velusamy v D Patchaiammal, the Supreme Court laid down the prerequisites for recognising a common-law relationship akin to marriage. It held that:

• the couple:
• • should hold themselves out to society as being akin to spouses; and
  • should be of age to marry; and
• the cohabitation:
• • should be voluntary; and
  • should be a respectful relationship such as that in a marriage.

The Supreme Court has recognised the legality of live-in relationships even to the extent of allowing claims of maintenance for women who separate from a live-in partner upon the satisfaction of certain parameters. This principle was enunciated in Chanmuniya v Virendra Kumar Singh Kushwaha.

4.3 Are religious marriages, foreign marriages or customary marriages recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Religious marriages, foreign marriages and customary marriages solemnised in accordance with Indian law can be recognised in India. For example, if a Hindu couple marry according to the customs specified in the Hindu Marriage Act, they can seek registration/recognition of the marriage. Further, a foreign marriage can be recognised subject to compulsory compliance with the Foreign Marriage Act 1969. Likewise, the requirements and restrictions on the recognition of religious marriages, foreign marriages and customary marriages will depend on the facts and circumstances of such marriage.

4.4 Does a specific marital property regime apply in your jurisdiction?

India lacks legislation that effectively provides for the division of joint marital property and assets. While the need for legal reforms to bridge this gap has been recognised in numerous discussions, no conclusive steps have yet been taken to introduce comprehensive legislation on the division of joint marital property in case of separation. The lack of such legislation complicates and prolongs divorce proceedings, as the effective division of property to the satisfaction of the parties involved is a complicated matter.

The Indian matrimonial statutes have no categorical regime for settling and deciding marital property disputes. Section 27 of the Hindu Marriage Act provides only for the settlement of property presented jointly to the husband and wife at or about the time of marriage.

In 2010, the Union Cabinet – consisting of the prime minister and his council of ministers – approved the Marriage Laws (Amendment) Bill 2010, which was to be subsequently placed before the Parliament of India; however, the bill was never passed by the legislative body. The Marriage Laws (Amendment) Bill 2010 envisaged that in case of divorce, a wife would be entitled to a half-share in her husband's residential property.

In India, there is no concept of matrimonial property in India; thus, there is no division of assets. However, maintenance is available to the wife as a statutory right upon the breakdown of a marriage. The courts have interpreted the term 'maintenance' very widely in order to allocate financial resources and property to a wife on the breakdown of a marriage. The courts have this power under:

• the respective personal laws;
• Section 125 of the Criminal Procedure Code; and
• Section 20 of the Protection of Women from Domestic Violence Act 2005.

5 Pre- and postnuptial agreements

5.1 Are pre- and postnuptial agreements recognised in your jurisdiction? Does this depend on whether the agreement was entered into in the jurisdiction?

Pre-nuptial agreements per se are not recognised in India. Post-nuptial agreements on consensual separation are recognised. Through a post-nuptial agreement, the parties release each other from their marital obligations. However, in India, there is no separate specific provision for separation by way of agreement, which is thus governed under the Contracts Act 1872. Therefore, the voidability of separation agreements is also based on the essentials of a contract. Separation agreements provide for a smooth and easy way of separation, without any formal proceedings or publicity.

5.2 What are the formal and procedural requirements to enter into a valid pre- or postnuptial agreement and what requirements and restrictions apply to the content of pre- and postnuptial agreements?

In India, there are no formal or procedural requirements to enter into a valid post-nuptial agreement. A post-nuptial agreement is usually drawn up after both parties have decided to separate. Divorce in India is primary obtained as a judicial order; therefore, even if a post-nuptial agreement is drawn up, it must be exhibited or reproduced in the judicial order through which the divorce is issued. A post-nuptial agreement is legally valid in India if it is in consonance with the Contract Act, 1872. Therefore, the post-nuptial agreement should be free from coercion, fraud, undue influence, misrepresentation or similar.

5.3 What specific considerations and concerns should be borne in mind in relation to pre- and postnuptial agreements where the parties have international connections (eg, in terms of the location of assets, domicile/habitual residence or future plans)?

When parties with international connections are considering entering into pre-nuptial or post-nuptial agreements, there are several specific considerations and concerns that should be taken into account due to the complexity of international legal issues. These agreements outline the distribution of assets and liabilities in the event of divorce or separation. Key factors to bear in mind include the following:

• Choice of law: It is crucial to determine which jurisdiction's laws will govern the agreement. Parties should consider:
• • where they are currently living;
  • where they plan to reside in the future; and
  • the location of their assets.
• Different countries have varying rules and standards when it comes to marital property and these can significantly impact the validity and enforcement of the agreement.
• Recognition of agreements: Not all countries recognise or enforce pre-nuptial or post-nuptial agreements. Understanding the legal landscape in the relevant jurisdictions is essential. Some countries may recognise such agreements only if they meet specific formal requirements or adhere to particular legal standards.
• International assets: If the parties have assets located in different countries, this can complicate enforcement of the agreement. Consider how the agreement will address the division of these international assets, especially if they are subject to different legal systems.
• Domicile and habitual residence: The parties' domicile and habitual residence can affect the determination of jurisdiction for a divorce and, consequently, the applicability of the agreement. Ensure that the agreement is drafted to account for possible changes in domicile or residence over time.
• Financial disclosure: Full and accurate financial disclosure is typically a requirement for the enforceability of pre-nuptial and post-nuptial agreements. However, this may be complicated in international cases, as financial information from different jurisdictions may need to be included.
• Translation: If the agreement is drafted in one language but the parties speak different languages, translation issues may arise. It is essential to clarify which version of the agreement will prevail in the event of a dispute.
• Cultural and legal differences: The parties should be aware of cultural and legal differences regarding marriage and property rights in different countries. These differences can impact the terms and enforceability of the agreement.
• Consultation with legal experts: Legal advice should be sought from lawyers with experience in international family law or cross-border legal matters. They can help to navigate the complex legal landscape and ensure that the agreement is legally sound and enforceable in multiple jurisdictions.
• Amendment and updating: The agreement should address how it can be amended or updated over time, especially if the parties' circumstances change, such as by moving to a different country or acquiring new assets.
• Enforcement and jurisdictional challenges: The parties should be aware that enforcing an agreement across international borders can be challenging. Legal proceedings may need to be initiated in multiple jurisdictions and the outcome can vary based on local laws and court decisions.

5.4 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

Same-sex couples do not have equal rights and legal recognition in India in the same way as opposite-sex couples. Key differences in treatment include the following:

• Marriage: Unlike opposite-sex couples, same-sex couples cannot legally marry in India. 'Marriage' in India is traditionally defined as a union between a man and a woman. Consequently, same-sex marriages are not legally recognised and couples cannot enjoy the legal benefits and protections associated with marriage.
• Adoption: Same-sex couples often face challenges when adopting children. Adoption laws vary across different states in India and in many cases do not explicitly address the adoption rights of same-sex couples. This ambiguity may lead to unequal treatment and difficulties in adopting children as a same-sex couple.
• Inheritance and property rights: Inheritance and property rights are another area in which same-sex couples face disparities. Indian inheritance laws typically favour legal spouses in matters of property inheritance. As same-sex marriages are not recognised, same-sex partners often lack the same legal rights as married opposite-sex couples in property-related matters.
• Social stigma and discrimination: While not a direct legal difference, same-sex couples often experience social stigma and discrimination which may impact their daily lives and access to various services and opportunities.

5.5 Is the legal status of a separation agreement different from a pre- or postnuptial agreement? If so what are the differences?

The legal status of a separation agreement is different from that of a pre-nuptial or post-nuptial agreement. The main differences relate to their purpose, timing and enforceability, as follows:

• Purpose:
• • Separation agreement: A separation agreement is a legally binding contract that outlines the terms and conditions under which a married couple will live separately or separate their finances, assets and responsibilities while remaining legally married. It is typically used when a couple has decided to separate but not divorce, either temporarily or as a prelude to divorce. The primary focus is on the logistics and responsibilities during the separation period. In India, such agreements are often entered into during a mutual consent divorce.
  • Pre-nuptial agreement: A pre-nuptial agreement is a legal contract entered into by a couple before they get married. Its purpose is to specify how assets, debts and other financial matters will be divided in the event of a divorce or separation. Pre-nuptial agreements are intended to protect the individual assets and interests of each spouse if the marriage ends in divorce.
  • Post-nuptial agreement: A post-nuptial agreement is similar to a pre-nuptial agreement, but it is executed after a couple have already married. It serves the same purpose as a pre-nuptial agreement: to outline the division of assets, debts and financial matters in case of divorce or separation. Post-nuptial agreements are typically used when couples want to clarify or modify their financial arrangements during the marriage.
• Enforceability:
• • Separation agreement: A separation agreement is generally enforceable as a contract and its terms are subject to contract law. The courts will typically uphold a properly executed and fair separation agreement unless there is evidence of fraud, duress or unconscionability.
  • Pre-nuptial agreement: Pre-nuptial agreements are subject to strict legal scrutiny. For a pre-nuptial agreement to be enforceable, it must meet certain criteria, such as:
  • • full financial disclosure;
    • voluntary and informed consent; and
    • fairness at the time of execution.
  • The courts may invalidate a pre-nuptial agreement if:
  • • it is deemed to be unconscionable; or
    • there were fraudulent inducements.
  • In India, a pre-nuptial agreement is per se not enforceable. A couple intending to enter in a pre-nuptial agreement should consults an attorney of their choice for more clarity on this subject.
  • Post-nuptial agreement: Similar to pre-nuptial agreements, post-nuptial agreements must meet the same legal standards for enforceability, including:
    • full disclosure;
    • voluntary consent; and
    • fairness.
  • The courts may closely scrutinise post-nuptial agreements to ensure that they are not the result of coercion or fraud.

In summary, while all three types of agreements have legal significance, they serve different purposes and are executed at different times in a marriage. Separation agreements focus on separation logistics, while pre-nuptial and post-nuptial agreements address financial matters in the event of divorce. The enforceability of these agreements depends on:

• adherence to legal standards; and
• the specific circumstances surrounding their execution.

Consulting with legal professionals when creating such agreements is crucial to ensure their validity and enforceability.

6 Divorce

6.1 Under what circumstances do the domestic courts have jurisdiction to deal with a divorce initiated by the parties?

The domestic courts that deal with matrimonial proceedings are regulated by legislative statutes which are specified in the answer to question 6.2.

6.2 What are the grounds for divorce in your jurisdiction? How do the parties prove these grounds?

Hindu Marriage Act 1955: Section 13(1) of the Hindu Marriage Act 1955 sets out the grounds on which either party can seek a divorce from a court of law. There are nine specific grounds, as follows:

• Cruelty: The Marriage Laws (Amendment) Act 1976 specifies cruelty as a ground for divorce. 'Mental cruelty' refers to conduct inflicted by one party upon the other that causes such mental pain and suffering as would make it impossible for the parties to live together. It is not necessary to prove injury or physical hurt inflicted on the party to prove cruelty.
• Desertion: This refers to the permanent abandonment of one spouse by the other without any reasonable cause or justification, and without mutual consent. The spouse must leave with the intention of deserting the other party, thereby resulting in the breakdown of the marriage.
• Conversion: The Hindu Marriage Act acknowledges the religious sentiments and culture of the country; therefore, the conversion of one spouse from Hinduism to any other religion after marriage constitutes grounds for a divorce.
• Insanity: If the respondent is incurably of unsound mind or has been suffering from any mental disorder on a continuous basis, this constitutes grounds for divorce. This is based on the principle that the petitioner cannot be expected to live with the respondent in such circumstances.
• Leprosy: If one of the parties is suffering from a virulent and incapable form of leprosy, the other party has valid grounds for seeking a divorce.
• Sexually transmitted infection (STI): If one of the parties is suffering from an STI, the other party can seek divorce under this provision.
• Renunciation: If one of the parties renounces the world after marriage by entering a religious order, this constitutes grounds for a divorce.
• Presumption of death: If the whereabouts of one of the parties remains unknown to the spouse, family and kin of that party for seven consecutive years, this constitutes grounds for divorce.
• Adultery: In India, living in adultery is immoral and socially unacceptable. Therefore, if one of the spouses consensually indulges in sexual intercourse with another person, irrespective of that person's marital status, during the marriage's subsistence, the aggrieved spouse can seek a divorce.

For all of the aforementioned grounds, the parties can approach a court of law with appropriate jurisdiction and seek a decree of divorce. The grounds must be proved before the court of competent jurisdiction and as a judgment in rem in consonance with Section 41 of the Evidence Act, 1972.

Dissolution of Muslim Marriages Act 1939: Section 2 of the Dissolution of Muslim Marriages Act 1939 sets out the following grounds for divorce:

• Unknown whereabouts: If the whereabouts of the husband remains unknown for a period of four years, a married Muslim woman is entitled to obtain a decree for dissolution of the marriage. However, this decree does not take effect for a period of six months; and if the husband appears before the court and satisfies it that he can perform his conjugal duties, the decree will be set aside.
• Failure to maintain wife: If the husband has failed to maintain his wife for a period of two years, a married Muslim woman is entitled to a divorce.
• Imprisonment: If the husband is sentenced to imprisonment for a period of seven years or more, his wife is entitled to a divorce. The sentence must be final in order for a decree of divorce to be passed.
• Impotence: If the husband was impotent at the time of the marriage and continues to be so, the wife is entitled to a judicial divorce for dissolution of the marriage. The court may pass an order, on application by the husband within one year thereafter, if it is satisfied that he has ceased to be impotent; should the husband succeed, no such decree will be granted.
• Insanity: This constitutes grounds for divorce if the respondent has been incurably of unsound mind or has been suffering continuously from any mental disorder.
• STI: If one of the parties is suffering from an STI, the other party can seek divorce under this provision.
• Repudiation of marriage by the wife: If the wife was given in marriage by her father or any other guardian before reaching the age of 18 and the marriage has not been consummated, the wife is entitled to a decree of divorce.
• Cruelty by the husband: A Muslim wife can seek a divorce if her husband subjects her cruelty by:
• • habitually assaulting her or making her life miserable through cruelty of conduct, even if this conduct does not amount to physical ill treatment;
  • associating with women of evil repute or leading a life of infamy;
  • attempting to force her to lead an immoral life;
  • disposing of her property or preventing her from exercising her legal rights over it;
  • obstructing her observance of her religious profession or practice; or
  • if he has more than one wife, not treating them equitably in accordance with the injunctions of the Quran.

Other grounds: A divorce can be sought on any other grounds which are recognised as valid under Muslim law.

6.3 How does the divorce process typically unfold and what is the general timeline?

Divorce in India is primarily governed by:

• personal laws such as the Hindu Marriage Act, 1955 and the Dissolution of Marriage Act 1939;
• other secular statutes such as the Special Marriages Act, 1954; and
• religious practices.

The timeline for the conclusion of divorce proceedings is primarily contingent on whether the divorce is sought by mutual consent or is contested.

As per the Supreme Court guidelines, the minimum stipulated period for the conclusion of divorce proceedings is six months. However, this period regularly is extended to between five and 10 years due to factors such as:

• a lack of documentary evidence;
• a backlog of cases at the courts;
• dilatory tactics by the husband to evade maintenance; and
• frivolous allegations.

The process of seeking divorce entails:

• the filing of a petition for divorce;
• the grant of judicial separation for a period of 180 days; and
• the examination of records, witness statements and so on.

Further, the courts are duty bound to attempt to facilitate the reconciliation of the parties, which can be done by:

• specifying a cooling-off period; or
• referring the case for mediation.

In cases of fault-based divorce, where multiple issues are contested – for example, grounds of adultery (under Section 13(1)(i) of the Hindu Marriage Act) or conversion to another religion (under Section 13(1)(ii) under the Hindu Marriage Act) – the adjudication of issues and the examination of evidence, witness statements and so on will further contribute to the delay in finalising the divorce proceedings.

However, the Supreme Court is continuously striving to simplify matrimonial proceedings and ensure their timely conclusion. In Rajnesh v Neha, in order to avoid a multiplicity of proceedings, the Supreme Court set out a specific procedure for deciding on:

• the date of the calculation of maintenance;
• the format for filing income affidavits; and
• the criteria for grant of maintenance.

In Amardeep Singh v Harveen Kaur, the Supreme Court observed that the mandatory six-month cooling-off period can be dispensed with in the case of a petition for divorce via mutual consent (under Section 13(b) of the Hindu Marriage Act). The five-judge bench said that this can be done while exercising the powers under Article 142 of the Constitution.

6.4 Can divorce proceedings be finalised while other related proceedings (eg, involving children or finances) are still ongoing?

In India, a petition for divorce can be made under:

• Section 13(1) of the Hindu Marriage Act, 1955;
• Section 27 of the Special Marriage Act, 1954; and
• Section 2 of the Dissolution of Marriage Act, 1935.

However, apart from a divorce petition, there are multiple simultaneous proceedings that are set in motion under various Indian statutes. Some of the common petitions filed simultaneously are as follows:

• In case of domestic violence and cruelty, a complaint may be filed under Sections 9 and 12 of the Protection of Women from Domestic Violence Act 2005;
• A complaint under Section 498A of the Penal Code, 1860 may be filed by a woman against her husband and his family members in case of cruelty against a wife;
• A petition under Section 125 of the Code of Criminal Procedure 1973 may be filed for maintenance for a wife and minor children; and
• A petition for child custody, visitation rights and so on may be filed under Sections 7 and 25 of the Guardianship and Wards Act 1890.

In India, by a general rule of practice, all such relief is claimed by setting the aforementioned applications in motion while seeking a divorce. However, there is no bar against finalising the divorce proceedings while other ancillary proceedings (eg, guardianship petition, domestic violence complaint) remain pending before the competent courts.

The only prerequisite is that interim orders with respect to child custody and the grant of maintenance must have been made by the court. If such orders have not been made, the final order of the divorce must consist of a direction with respect to maintenance/alimony and custody of the child. Further, a domestic violence complaint is a criminal charge, for which separate proceedings may continue even once the divorce has been finalised. Therefore, due to the civil and criminal nature of such multiple proceedings, the Indian courts allow each petition to be decided individually and separately.

6.5 Is non-judicial divorce available in your jurisdiction? What requirements and restrictions apply in this regard and how does the process typically unfold?

India does not recognise any form of non-judicial divorce. A divorce can only be obtained by approaching the courts, irrespective of the grounds on which it is sought. For instance, for a Hindu couple to obtain a divorce with mutual consent, they must file a petition with the competent court of jurisdiction under Section 13(b) of the Hindu Marriage Act, 1955. Further, in order to obtain divorce on any of the fault grounds (eg, desertion, cruelty, impotence), a petition under Section 13(2) of the Hindu Marriage Act must be filed.

India is a country that is deeply rooted in culture and tradition, where marriage is considered to be a sacred tie that cannot be severed without fault being established. Therefore, a comprehensive legislative framework exists to provide for judicial proceedings when seeking a divorce. The legislature and the judiciary consider the intervention of a court of law to be necessary for divorce proceedings in order to:

• investigate the circumstances;
• interpret the legal provisions; and
• evaluate the evidence provided by the parties.

6.6 Are foreign divorces and religious divorces recognised in your jurisdiction? What requirements and restrictions apply in this regard?

Foreign divorces: The Foreign Marriage Act, 1969 provides for the recognition of a marriage of an Indian citizen abroad. Under this act, one of the parties must be an Indian citizen; if this condition is met, the Special Marriage Act, 1954 will apply. A marriage under the Foreign Marriage Act will be dissolved on the same fault grounds as under the Special Marriage Act. It has been categorically held that such parties cannot obtain a divorce through arbitration; and a distinction between matrimonial contact and general contract was established in Raj Kumar Bansal v Anjana Kumari.

Enforceability of foreign matrimonial judgments: Further, Sections 13, 14 and 44A of the Code of Civil Procedure, 1908 govern the execution of foreign judgments and decrees in India. There are no specific provisions in any personal laws pertaining to matrimonial disputes and the enforcement of foreign judgments.

Section 1 of the Hindu Marriage Act makes it clear that the act extends even to persons who are "domiciled in the territories to which this Act extends who are outside the said territories". For instance, the Kerala High Court, in Augustine Kalathil Mathew v The Marriage Officer, held that where the parties have voluntarily submitted to the jurisdiction of the personal law court of another country (in this case, the United Arab Emirates), even if the decree does not accord with the matrimonial law applicable to them, the divorce certification granted will be recognised by the Indian courts. Section 14 states that unless the circumstances indicate the contrary, all courts should be presumed to have competent jurisdiction.

The essence of Section 44A, of the Code of Civil Procedure is that when a certified copy of a decree by a superior court in a reciprocating territory (both defined in the Gazette of India) is filed in a district court, it will be deemed to be a decree pronounced by a district court in India.

Additionally, Section 41 of the Evidence Act states that the final judgment of a competent court in the exercise of matrimonial jurisdiction constitutes conclusive proof. In Y Narasimharao v Y Venkata, the Supreme Court:

• held that matrimonial judgments rendered by courts of competent jurisdiction are enforceable; and
• interpreted what constitutes a 'competent court'.

The Supreme Court specified two rules for valid execution, as follows:

• The decree must have been passed by a court of competent jurisdiction which the applicable matrimonial law recognises; and
• The grounds for divorce must be mentioned in the applicable matrimonial legislation in India.

Conclusively, once a certified copy of a decree passed by a court of competent jurisdiction on grounds mentioned in the applicable Indian law has been presented to the district court, it will be deemed to have the value of a decree of a district court in India.

Religious divorces: For Hindus, Sikhs, Buddhists and Jains, divorce practices are strictly codified under the Hindu Marriage Act, 1955. However, under the Muslim personal laws, apart from statutory provisions, talaaq-e-hasan (an extra-judicial form of divorce that can be practised by men), talaaq-e-ahsan (the most laudable divorce where the husband repudiates his wife by making one pronouncement) and talaq-e-biddat (a disapproved mode of divorce that becomes effective as soon as the words are pronounced with no possibility of reconciliation between the parties, thereby making it irrevocable) are some customary divorces that are recognised in India. Section 13 of the Hindu Marriage Act lists various fault grounds for seeking divorce. On the other hand, certain practices of Islamic law – such as observation of the 90-day period of iddat (the period in which a woman must not marry another man after the death of her husband or after a divorce), revocation of talaaq (divorce) during the period of abstinence and the number of pronouncements – although not codified, are recognised in India. However, for such customs to be recognised in India, compliance with the constitutional provisions of basic fundamental rights, justice and equality is necessary. The Supreme Court, through judicial review and intervention, has ruled on the constitutionality of such customs, such as in Ahmed Khan v Shah Bano v Union of India. Hence, the conclusive position is that as long as the provision for divorce does not violate constitutional principles, it will be recognised in India.

6.7 Are separation and/or nullity proceedings available in your jurisdiction? What requirements and restrictions apply in this regard?

Instruments such as judicial separation and separation agreements are available in India to help the parties separate while still being married under the law. These instruments allow the couple to formally separate without having to obtain a divorce. The parties may also seek judicial separation as a way of utilising ancillary proceedings such as custody or maintenance proceedings without formally going through a divorce.

Separation agreement: Through a separation agreement, the parties release each other from their marital obligations. However, there are no specific legal provisions on separation by way of agreement, so this is governed under the Contracts Act, 1872. Therefore, whether a separation agreement can be considered void will also be based on the essentials of a contract. Separation agreements are a smooth and easy way to separate without any formal proceedings or publicity.

However, it has been settled through judicial precedent that no party can label the other a 'deserter' after acting in accordance with a separation agreement. Further, the separation agreement should relate to the present situation; agreements contingent on future situations are void, as they are against public policy.

Separation agreements do not imply forfeiture of the parties' right to maintenance. In India, it settled law under Sandhya Chatterjee v Salil Chandra Chatterjee (AIR 1980 Cal 244) that covenants pertaining to the maintenance of a spouse and the custody and education of children are valid.

Judicial separation: Except under Muslim law, all matrimonial statutes contain a provision for judicial separation, although this is not identical under all statutes. Under Section 10 of the Hindu Marriage Act, 1955:

• any husband or wife married before or after the enactment of this law can sue each other for judicial separation on any of the grounds stated in Section 13(1); and
• a wife can sue on the additional grounds stated in Section 13(1).

Once such a decree is passed, it is no longer obligatory for the parties to cohabit. However, the court may rescind the decree:

• by petition of either party; and
• on being satisfied of the truth of the petition.

An identical provision for judicial separation exists under Section 23 of the Special Marriage Act, 1954 for any parties who solemnised their marriage under this act. Similarly, the Parsi Marriage and Divorce Act, 1936 provides that any married person can sue for judicial separation on any of the grounds for divorce set out in the statute.

6.8 What are the requirements for effective service of the divorce papers on the other party in your jurisdiction and how can the papers be served on the opposing party if he or she lives overseas?

Service in India: As a rule, divorce papers are served in accordance with the Code of Civil Procedure 1908. Order 5, Rules 10-16 and 18 deal with personal or direct service. The following requirements must be taken into consideration when serving a respondent through personal service:

• The divorce papers must be served on the spouse of the petitioner or his or her agent;
• In the absence of the husband, the papers can be served on a close relative living in the house of the spouse, provided that the relative is an adult and is capable of receiving the papers; and
• Service of summons by the court is also possible under Rule 9, Order 5 of the code.

Over time, the courts have also paved the way for substituted service where personal service is not possible. Substituted service involves sending the summons or divorce papers through electronic modes of communication such as email or WhatsApp. However:

• prior permission must be obtained from the court before effecting substituted service; and
• it should be explicitly mentioned in the court order that the court has permitted such substituted service.

Service in a foreign jurisdiction: India is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

The process of service of summons outside India must accord with the measures provided under the convention, which are as follows:

• The authority or the judicial officer competent under the law of the state of origin must forward a request in the prescribed format to the central authority. The request or the document must be served in duplicate.
• The central authority can then serve the document by itself or arrange to have it served either:
• • through the procedure prescribed by internal law; or
  • in the way requested by the person serving it.
• The document may be required to be written in or translated into the official language of the state addressed.
• After completion of service, the central authority will send a certificate stating:
• • that such service has been made; or
  • in case of failure to make service, the reasons for not completing the service.

Further, under Article 10 of the Hague Convention, India has opposed the service of judicial documents through personal modes, which implies that service can only be effected through the central authority.

7 Finances

7.1 Does the court in your jurisdiction take the lead to facilitate financial settlement through court processes (eg, through a financial dispute resolution hearing)?

In India, the court system can play a crucial role in facilitating financial settlements through various legal processes, including through financial dispute resolution hearings. The following procedures are available:

• Mediation and conciliation: The Indian courts may encourage parties to explore alternative dispute resolution methods such as mediation or conciliation. They can refer the case to a court-annexed mediation centre or appoint a mediator to help the parties reach a settlement. Mediation is a voluntary process but the court can encourage participation.
• Financial dispute resolution hearings: In certain cases – especially when mediation fails or is not suitable – the court may conduct financial dispute resolution hearings. During these hearings, both parties present their arguments, evidence and proposals for settlement. The court may:
• • actively participate in negotiations;
  • suggest potential solutions; and
  • work towards a resolution.
• Court orders and judgments: If the parties fail to reach a settlement, the court will proceed with the trial. After considering the evidence and arguments, the court will issue a judgment. This judgment:
• • will outline the financial settlement, if applicable; and
  • may include orders for payment or other remedies.
• Enforcement of settlements: If a financial settlement is reached through negotiation, mediation or court order, the court will ensure that the settlement terms are enforced. There are various remedies to ensure compliance with settlements/court orders, such as:
• • execution proceedings; and
  • contempt proceedings.

The specific procedures and practices may vary depending on:

• the type of court (eg, civil, criminal, commercial); and
• the nature of the financial dispute.

Additionally, Indian law encourages parties to resolve disputes amicably whenever possible and the courts play a vital role in facilitating this process.

Legal representation is often advisable when dealing with financial disputes in court to ensure that your rights and interests are protected throughout the process.

7.2 Spousal and child maintenance:

1. What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?
2. What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?
3. When do spousal and child maintenance expire?
4. What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?
5. Which bodies are responsible for issuing child support orders in your jurisdiction?
6. Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?
7. Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?
8. What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?
9. What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

(a) What orders can the court make in relation to spousal and child maintenance on divorce or judicial separation and how are the relevant amounts calculated?

Various factors must be kept in mind when calculating child support and spousal support. These factors will be examined carefully by the judge before issuing a final judgment. Some of these are discussed below.

Spousal support: There are various enactment through which a spouse can seek support/maintenance, alimony and so on. For example, under Section 25 of the Hindu Marriage Act, 1955, alimony is given to a spouse after getting divorced. Thus, if the wife is a working woman with her own livelihood, the difference between the earnings of the husband and wife will be taken into account. If that difference is considerable, the wife will receive alimony after divorce.

In some cases, a husband can receive alimony if he is unable to earn or disabled and the wife is earning. If the wife is unemployed, her age, educational qualifications, and earning capability will be considered in calculating the alimony.

Factors affecting the spousal support calculations: The following factors are considered in the court's calculations:

• the incomes of the husband and wife, and other assets such as property and stocks;
• the conduct of the husband and the wife;
• Monthly Instalments, loan repayments, income tax and so on, which are mandatorily deducted from the spouse's income to calculate his or her net income;
• liabilities of the spouses, such as dependent parents;
• the spouses' lifestyles and social status;
• the age and health conditions of the spouses;
• the duration of the marriage; and
• the expenses of any children.

(b) What general principles apply to spousal and child maintenance? What specific factors will the court consider in deciding which orders to make in this regard?

There is no specific legislation/provision for law pertaining to spousal and child maintenance in India, however, the legal principles for spousal and child maintenance have been derived from various precedents set out by the Supreme Court of India. The Courts will consider the following principles:

Spousal Maintenance:

• Financial Need: Courts typically assess the financial needs of the spouse seeking maintenance. This includes considering their income, assets, and reasonable expenses.
• Ability to Pay: The court will also evaluate the ability of the paying spouse to meet their own financial obligations while providing support. This assessment takes into account their income, assets, and expenses.
• Standard of Living: Courts may aim to maintain a reasonable standard of living for the spouse seeking maintenance, similar to what they enjoyed during the marriage.
• Duration of the Marriage: The length of the marriage often plays a role in determining the duration and amount of spousal maintenance. Longer marriages may lead to more extended and substantial maintenance orders.
• Earning Capacity: The court may consider the earning capacity of both spouses, taking into account their education, skills, and ability to find suitable employment.
• Contributions to the Marriage: Contributions made by each spouse to the marriage, both financial and non-financial, are typically considered. This includes homemaking, childcare, and career sacrifices made for the benefit of the family.
• Custodial Responsibilities: If one spouse has primary custody of the children, this may be a factor in determining spousal maintenance, as it can impact their ability to work and support themselves.

Child Maintenance:

• Child's Best Interests: The primary consideration in child maintenance cases is the best interests of the child. Courts aim to ensure that the child's needs for support, care, and education are met.
• Child's Needs: Courts will assess the specific needs of the child, such as housing, food, clothing, medical care, and education.
• Income and Expenses: The income and expenses of both parents are evaluated to determine their ability to contribute to the child's financial support.
• Custodial Arrangements: The custody and visitation arrangements may impact the amount of child maintenance. For example, the non-custodial parent may be required to pay more if they have limited visitation rights.
• Child's Age and Health: The child's age, health, and any special needs will be considered when determining child maintenance.
• Parenting Time: In shared custody or joint custody arrangements, where both parents have significant parenting time, child maintenance may be adjusted accordingly.
• Income Changes: Courts may allow for modifications to child maintenance orders if there are substantial changes in the income or financial circumstances of either parent.

Family courts have discretion in making spousal and child maintenance orders, and the final decision will depend on the circumstances of each situation.

(c) When do spousal and child maintenance expire?

Spousal and child maintenance laws can vary significantly from one jurisdiction to another, so it's crucial to consult the specific laws and regulations in your area to get accurate information. However, a general overview of common principles that often apply to the expiration of spousal and child maintenance.

1. Duration of Spousal Maintenance:
   
   • Court Order: Spousal maintenance, also known as alimony or spousal support, is typically determined by a court order or through a voluntary agreement between the spouses. The duration of spousal maintenance can vary widely based on factors such as the length of the marriage, the financial circumstances of each spouse, and the specific laws in your jurisdiction.
   • Change in Circumstances: Spousal maintenance may expire or be modified if there is a significant change in the financial circumstances of either spouse. For example, if the recipient spouse remarries or obtains a significant increase in income, the paying spouse may request a modification or termination of the maintenance obligation.
2. Duration of Child Maintenance (Child Support):
   
   • Age of Majority: Child maintenance, often referred to as child support, typically continues until the child reaches the age of majority, which is usually 18 years old in many jurisdictions. However, this age can vary by jurisdiction.
   • Post-Majority Support: In some cases, child support may extend beyond the age of majority, especially if the child has special needs, disabilities, or is pursuing higher education. Some jurisdictions have laws that allow for post-majority support in certain circumstances.
   • Emancipation: Child support may also end if the child becomes emancipated before reaching the age of majority. Emancipation can occur when a child marries, joins the military, or becomes financially self-sufficient.
   • Court Orders and Agreements: Child support obligations are typically outlined in court orders or agreements between the parents. These documents should specify the terms and conditions under which child support will be paid and when it may cease.

Court orders and agreements will provide the most accurate information on when these maintenance obligations expire in your particular situation. Additionally, modification requests can be made if circumstances change, but they must usually be approved by the court.

(d) What happens to spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt?

In India, the concept of spousal and child maintenance after the death of the paying party or if the paying party is an adjudicated bankrupt is governed by:

• the personal laws; and
• the Insolvency and Bankruptcy Code, 2016.

Under the personal laws, the obligations of spousal and child maintenance cease upon the death of the paying party. However, the burden of providing for the maintenance of

the spouse and children may fall on the deceased's estate or surviving family members, depending on the circumstances and the assets left behind by the deceased.

In case of bankruptcy, if the paying party is declared bankrupt under the Insolvency and Bankruptcy Code, 2016, his or her financial obligations – including spousal and child maintenance – may be discharged or modified. Upon the initiation of bankruptcy proceedings, an insolvency resolution professional is appointed to manage the debtor's affairs and distribute the available funds to the creditors, including the ex-spouse and children who may be entitled to maintenance.

Under Section 53 of the Insolvency and Bankruptcy Code, 2016, financial debts owed to operational creditors – including maintenance-related payments – are classified as unsecured and are given a lower priority compared to other debts. This means that the amount available for maintenance may be significantly reduced in cases of bankruptcy, depending on:

• the availability of funds; and
• the claims of other creditors.

Specific provisions and applicable laws may vary depending on the personal laws applicable to different religions in India. Jurisdiction concerning personal laws and the Insolvency and Bankruptcy Code lies with the civil courts and the National Company Law Tribunal, respectively, depending on the nature of the case.

(e) Which bodies are responsible for issuing child support orders in your jurisdiction?

In India, child support orders are not issued by specific bodies. Child support orders are typically awarded by family courts under the guardianship and maintenance provisions of various personal laws such as:

• the Hindu Adoption and Maintenance Act, 1956;
• the Hindu Minority and Guardianship Act, 1956;
• the Muslim Personal Law (Shariat) Application Act, 1937; and
• the Divorce Act, 1869.

Child welfare committees are statutory bodies established under the Juvenile Justice (Care and Protection of Children) Act, 2015. They are responsible for ensuring the welfare and rehabilitation of children in need of care and protection, and are not specifically empowered to issue child support orders.

If a party seeks child support as part of a divorce or maintenance proceeding, he or she must approach the relevant family court or civil court of competent jurisdiction according to the jurisdiction and applicable personal laws. The family court will then decide on the amount and manner of child support based on the facts and circumstances of the case, taking into consideration the best interests of the child.

(f) Does the child support regime vary depending on whether the parents' relationship was formalised (eg, marriage/civil partnership/co-habitation)?

In India, the child support regime varies depending on whether the parents' relationship was formalised, particularly in the context of a live-in relationship.

The right of a child to claim maintenance is governed by the Criminal Procedure Code, 1973 (CrCP). Section 125 allows a child, irrespective of the parents' marital status, to claim maintenance from his or her father. It imposes a legal obligation on the father to maintain the child if he neglects or refuses to do so voluntarily.

The court may award maintenance to the child, taking into account factors such as:

• the needs of the child;
• the income of the father; and
• the standard of living that the child would have enjoyed had the couple been married.

The amount of maintenance awarded may vary depending on the specific circumstances of the case.

While the CrPC provides the legal framework for claiming maintenance, the actual jurisdiction and enforcement of the order lies with the magistrates court. The court within whose jurisdiction the father resides or where the child resides has the authority to hear and decide on the maintenance claim.

Therefore, even in the case of a live-in relationship, if a child is born and the father neglects his obligations towards the child, the child can seek maintenance under Section 125 of the CrPC from the father, regardless of whether the parents' relationship was formalised.

(g) Can a child (adult or minor) make a direct claim for child support? If so, under what circumstances?

Under Section 125 of the CrPC, a child (adult or minor) can make a direct claim for child support in India under certain circumstances.

Section 125 provides for the maintenance of wives, children and parents. According to this provision, if a person with sufficient means neglects or refuses to maintain his wife, a legitimate or illegitimate minor child, or parents who are unable to maintain themselves, these parties may approach the court to claim maintenance.

A child (adult or minor) can directly make a claim for child support if he or she can establish the following conditions:

• Paternity: The child must be able to establish paternity – that is, prove that the person from which he or she is claiming maintenance is his or her biological father.
• Neglect or refusal: The child must show that the alleged father has neglected or refused to maintain him or her.
• Inability to maintain himself or herself: The child must demonstrate that he or she is:
• • unable to maintain himself or herself financially (in the case of an adult child); or
  • a minor with no sufficient means or income to support himself or herself.

The jurisdiction to hear such claims under Section 125 of the CrPC lies with the magistrates court of the area in which:

• the person claiming maintenance ordinarily resides; or
• the person against whom maintenance is claimed:
• • resides;
  • carries on business; or
  • is employed.

(h) What specific considerations and concerns should be borne in mind in relation to child support where the parties have international connections?

In the context of child support, where the parties have international connections and the place of execution is in India, there are specific considerations and concerns that should be borne in mind.

One of the primary factors to consider is whether India has jurisdiction over the child support matter. Jurisdiction is typically determined by:

• the residence of the child or the parents;
• the place where the child primarily resides; or
• the applicable law regarding child support.

In India, one key statute governing child support is the Guardians and Wards Act, 1890. Section 25 of the act empowers the court to make suitable orders for maintenance and education of the child. The court can pass orders regarding the payment of child support, specifying:

• the amount to be paid;
• the manner and frequency of payment; and
• any other necessary provisions for the welfare of the child.

(i) What are the main enforcement methods to ensure compliance with child support awards? What are the typical consequences of breach?

At first instance, matters concerning child support such as maintenance and visitation arrangements are enforced through the courts by the exercise of their now legally vested rights via execution petitions. Through execution petitions, spousal rights are more or less reasserted so as to ensure the prompt and assured enforcement of these orders. However, when the parties attempt to evade such obligations, the courts have resorted to more coercive measures. For example, in Vinodchandra v Anupama (AIR 1993 Bom 23), the Bombay High Court wholly extinguished the visitation rights of the father, who had failed to pay maintenance, until the arrears were cleared. Further, contempt proceedings may also be pursued under the Contempt of Courts Act, 1971 for the wilful and deliberate disobedience and defiance of such judicial determinations, as demonstrated by the landmark decision of the Supreme Court in Rama Narang v Ramesh Narang (2006) 11 SCC 114.

7.3 Asset division:

1. What orders can the court make in relation to the division of assets on divorce or judicial separation?
2. What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?
3. How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?
4. Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?
5. Is the family home treated differently compared to other family assets on divorce or judicial separation? If so, how?
6. Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?
7. What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?
8. If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?
9. Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

(a) What orders can the court make in relation to the division of assets on divorce or judicial separation?

India does not per se recognise the concept of the division of assets in the context of a divorce or judicial separation matter. Nonetheless, a wife is entitled to alimony and maintenance. The provisions on alimony and maintenance are contained in:

• Sections 125-128 of the CrPC;
• the Hindu Marriage Act, 1955;
• the Hindu Adoption and Maintenance Act, 1956; and
• the Protection of Women from Domestic Violence Act, 2005.

(b) What general principles apply to the division of assets? What specific factors will the court consider in deciding which orders to make in this regard?

India does not recognise the concept of division of assets in the context of a divorce or judicial separation petition. However, a wife is entitled to alimony and maintenance under:

• Sections 125-128 of the CrPC;
• the Hindu Marriage Act, 1955;
• the Hindu Adoption and Maintenance Act, 1956; and
• the Protection of Women from Domestic Violence Act, 2005.

(c) How does the court treat unreasonable conduct during the marriage in relation to financial matters (eg, reckless spending, gambling, dissipation of assets) when determining on capital division in divorce?

The determination of financial assistance in the form of maintenance and alimony in case of divorce is taken into consideration. In this context, the court will consider the conduct of the spouses. For example:

• a wife who is charged with adultery will not be entitled to maintenance; and
• if the courts are satisfied that the conduct of a spouse was unreasonable, maintenance may be denied.

That said, these powers are extraordinary and are exercised by the courts only sparingly.

(d) Is it common for expert evidence to be adduced and used in court (eg, forensic accountants, valuations of companies/properties)?

In a matrimonial dispute in India, the income affidavits of both parties must be filed in court. As stated by the Supreme Court in its landmark judgment in Rajnesh v Neha (Criminal Appeal 730/2020):

• the income of both parties will be ascertained on the basis of their income affidavits; and
• the court will determine maintenance or alimony for the parties.

(e) Is the family home treated differently compared to other family assets on divorce or judicial separation?

In India, ancestral property is not taken into account when deciding on matters of alimony and maintenance during a divorce or judicial separation proceedings; only property which the parties have acquired themselves is taken into account. As per the Hindu Succession Act, 1956:

• only coparceners of Hindu joint families (mitakshara) can inherit ancestral property; and
• the wife is not a coparcener in her husband's joint family and cannot inherit any such property.

(f) Are trusts recognised in your jurisdiction? How are they treated on divorce or judicial separation?

Trust assets are excluded when determining alimony and maintenance during divorce or judicial separation proceedings. By transferring assets to a trust, ownership can be legally separated from individual spouses, reducing the risk of asset division during divorce.

(g) What are the main enforcement methods to ensure compliance with financial orders issued on divorce or judicial separation? What are the typical consequences of breach?

In order to ensure compliance with financial orders issued on divorce or judicial separation, the aggrieved party can initiate:

• execution proceedings under Section 51 and Order 21 of the Civil Procedure Code, 1908 and other statutory provisions; and
• contempt proceedings against the other party under the Contempt of Court Act, 1971 read with Article 215 of the Constitution.

Non-compliance or breach of a court decree is a very serious offence that implies interfering with the administration of justice and incurs the following sanctions:

• imprisonment;
• fines; and
• seizure of assets.

(h) If the parties are in agreement on financial matters, is non-judicial resolution of these possible? What requirements and restrictions apply in this regard and how does the process typically unfold?

If the parties are in agreement on financial matters, they may enter into an agreement which may be enforced. However, typically in India, such agreements are not executed, as the parties often wish to mutually dissolve their marriage if there is an agreement on financial matters. The agreement on financial matters must be free from fraud, coercion, misrepresentation and similar in order for it to be enforceable.

(i) Can the courts make financial orders in relation to a foreign divorce? What requirements and restrictions apply in this regard and who can apply for such orders?

Financial orders in relation to a foreign divorce can be executed in India only if they accord with Sections 13 and 14 of the Civil Procedure Code, 1908; if not, then such a foreign order cannot be executed in India. Consequently, the party who obtained the foreign order must initiate an execution proceeding under Section 44A of the Civil Procedure Code and other relevant provisions before a competent court.

8 Child custody

8.1 What general principles apply to custody and access arrangements? What specific factors will the court consider in deciding which orders to make in this regard?

Custody is governed by statutes such as:

• Section 26 of the Hindu Marriage Act, 1955;
• Section 38 of the Special Marriage Act, 1954;
• the Guardians and Wards Act, 1890; and
• Section 6(a) of the Hindu Minority and Guardianship Act, 1956.

The Christian laws per se have no provisions on custody; instead, these issues are addressed by the Divorce Act, 1869, which applies to all religions of the country. Under Muslim law, the first and foremost right to custody rests with the mother and she cannot be deprived of this right as long as she is not found guilty of misconduct.

Factors considered by the courts when granting custody: The welfare of the minor is the primary consideration in custody proceedings. This is very broadly defined and includes many diverse factors, including the following:

• the age, sex and religion of the minor;
• the personal law of the father. It is generally considered that the welfare of younger children is best safeguarded through the mother's custody;
• the character and capacity of the proposed guardian – the courts usually reject baseless allegations against mothers;
• any wishes of a deceased parent (eg, specified in a will);
• any existing or previous relations of the proposed guardian with the minor's property. The courts do not look kindly on guardians seeking custody merely in order to have control of the minor's property. However, if, for example, the minor's property is shared with the mother and she is otherwise a suitable guardian, the court will regard the property relationship as an additional factor in the mother's favour;
• the minor's preference, if he or she is old enough to express this intelligently – which is usually accepted as about nine years old;
• the unity of the family – the courts prefer to keep children united and will generally award custody of all children to either the mother or the father;
• whether either or both parents have remarried and there are stepchildren. Although the mother's remarriage to someone who is not the children's close blood relative often means that the court will not grant her custody, this rule is not strictly followed. Although the father's remarriage usually denies him custody, sometimes the courts will agree to grant him custody, especially where the children's stepmother cannot or will not have her own children;
• whether the parents live far apart – the courts sometimes will not grant the mother custody if she lives very far away from the father. However, in 1994 an Uzbek woman living in Uzbekistan was granted custody; the judge stated that modern modes of transport have shortened distances and meant that the father could depart from his home in the morning to visit them and return by evening;
• the child's comfort, health, material, intellectual, moral and spiritual welfare – a very broad category which includes the adequate and undisturbed education of the child;
• the financial circumstances and health of the parents. However, the mere fact that the mother is economically less secure than the father or suffers from ill health or a disability will not usually suffice to deny her custody because maintenance is the father's responsibility, irrespective of who is granted custody; and
• the undisturbed mental and psychological development of the minor. The courts generally seek to maintain the status quo as far as possible and will take into account the likely impact of a change in guardian and the child's reaction to this change.

8.2 Are unmarried couples/same-sex couples entitled to the same claims as married couples in relation to children? Are legitimate and illegitimate children treated identically by the court in your jurisdiction?

Unmarried couples/same-sex couples are entitled to the same claims as heterosexual married couples in relation to children if the child has been legally adopted under the Juvenile Justice (Care and Protection of Children) Act, 2015. Adoption by a homosexual (couple) in India follows the same legal process as that for a heterosexual couple. The couple must be registered as prospective adoptive parents with a recognised adoption agency. The adoption agency will conduct a home study and assess the suitability of the couple for adoption.

The Juvenile Justice (Care and Protection of Children) Act provides for the constitution of the Central Adoption Resource Authority, which is responsible for regulating and monitoring adoption procedures in India. Single individuals are eligible to adopt children in India regardless of their sexual orientation. The adoption laws in India do not specifically prohibit single LGBTQ+ individuals from adopting.

8.3 Does the court in your jurisdiction take the lead to facilitate settlement regarding children matters through court processes (eg, through a child dispute resolution hearing)?

In India, there are no specific child dispute resolution hearings; however, the courts will endeavour to promote an amicable settlement between the parties, keeping the best interests and welfare of the child in mind.

8.4 What kinds of experts will the court engage to assist it in deciding on what is best for the children (eg, designed social workers, clinical psychologists)?

In contested child custody cases, a child psychologist or qualified child counsellor may be called on to provide a professional recommendation, which can influence the judge's decision on custody. Child psychologists have the necessary training and skills to assess what is in the psychological best interests of the child as they pertain to custody and parenting time matters. This assessment can help the court in deciding on the optimal custody arrangement that will support the welfare of the child.

8.5 What requirements and restrictions apply to the removal of a child from the jurisdiction, both temporarily and permanently? What factors will the court consider in deciding on such a request?

Generally, the removal of a child from the jurisdiction in which a custody dispute pertaining to the minor child is pending is prohibited if there is a specific order of the court seized with the issue of custody. If a minor child is removed from the jurisdiction of the court where the custody dispute is pending without the consent of the court, the Guardians and Wards Act, 1890 and other statutory enactments empower the court to prosecute the parent who has removed the child. Section 44 of the Guardians and Wards Act provides as follows:

However, a parent can temporarily remove a minor child/ward from the jurisdiction of the court if there is a good-faith reason for such removal. The court can impose certain restrictions on the parent seeking to remove the minor child from the jurisdiction of the court in order to secure the child's return. Such measures include:

• deposit of the passports of the child and the parent;
• travel restrictions; and
• an affidavit of the parent stating that the minor child will be returned.

The permanent removal or relocation of a minor child from the jurisdiction of the court is not ordinarily permitted, unless the court expressly allows such removal or relocation.

The High Court of Delhi, in Aakriti Kapoor v Abhinav Agarwal, permitted a woman to permanently relocate with her minor child to Arizona, United States after her remarriage.

8.6 What regime applies to the international abduction of children in your jurisdiction?

India is not a party to the Hague Convention on Civil Aspects of International Child Abduction 1980, although accession is recommended by the judiciary. In most instances, child abduction is viewed as a child custody dispute and the personal law of the country where the abduction has taken place, except in a few exceptional cases where repatriation to the Home State is ordered by the domestic court where the minor child is taken to after the 'abduction'. A significant number of abducted children are often brought to India by a parent, according to statistics from the US government.

An emphasis on retaining and restoring the status quo for the child (ie, his or her habitual residence) is considered essential in order for justice to prevail. This is fair to the child and the parent, and ensures that the parent who abducted the child does not obtain an unreasonable benefit from this unfair action. This is highlighted in the explanatory report to the Hague Convention. A parent who purposely removes a child is attempting to alter the jurisdictional factor in a custody dispute. This should be remedied by facilitating the prompt return of the child. Thus, the Hague Convention is primarily concerned with determining the appropriate forum in which to hear the case, as outlined in Articles 16 and 19. The place to which the child is most accustomed will be deemed to be the optimal cultural and moral environment for his or her growth and development, due to his or her familiarity with these surroundings. These are the logical reasons for the emphasis placed on the return of the child to his or her habitual residence, albeit that this is subject to exceptions.

In Sarita Sharma v Sushil Sharma ((2000) 3 SCC 14), the husband obtained a court order in a foreign country for sole custody of the child. Violating the wife's right to visit, he removed the child to India, seeking enforcement of the foreign court order. However, the orders on the divorce and custody were passed after the wife had come to India. The court upheld the rights of the child, therefore the courts in India exercised their own inquiry before enforcing the child custody order of the foreign court. Hence, foreign judgment/ court order pertaining to the custody of the child were relooked by the courts in India. It ruled that in transnational custody disputes, the following principles should be considered:

• Conflict of laws rules indicate that the court which has the closest connection with the issues arising in the case should have jurisdiction;
• The welfare of the minor will prevail over Section 6 of the Hindu Minority and Guardianship Act, 1956; and
• The domestic court will consider the welfare of the child as of paramount importance and an order of a foreign court is only one factor to take into account in this assessment.

The court also considered the reasoning in McKee v McKee ((1951) AC 352), which stated that in countries that are not party to the Hague Convention, disputes must be decided on the merits.

In this vein, in Shilpa Aggarwal v Aviral Mittal ((2010) 1 SCC 591), the Supreme Court ordered the return of the child to the other country so that the dispute could be dealt in the foreign court, as this would guarantee the welfare of the child.

In Ruchi Majoo v Sanjeev Majoo (2011 6 SCC 479), the Supreme Court held that the phrase 'ordinarily resident' must be construed on a factual basis. It further held that:

• by application of the doctrine of parens patriae, courts must take an objective stand when it comes to determining the welfare of minors; and
• the reasoning behind an order given by a foreign court must not be adhered to without examining its intricacies – it is merely one factor to consider in making the final decision.

Therefore, if a parent removes his or her child and brings him or her to India, this is not per se treated as abduction, as India is not a signatory to the Hague Convention. Nonetheless, the other parent can file a writ of habeas corpus under Article 226/ or Article 32 of the Constitution and seek the return of the minor child to the place of his or her habitual residence. Further, if the aggrieved parent whose child has been removed can obtain an order from a competent foreign court (see Section 13 of the Code of Civil Procedure, 1908), he or she can file for execution of that order in India.

9 Surrogacy and adoption

9.1 What laws and regulations govern surrogacy agreements in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

In India, only gestational surrogacy for altruistic purposes is permitted. The primary statutes governing surrogacy in India are:

• the Surrogacy (Regulation) Act, 2021; and
• the Assisted Reproductive Technology (Regulation) Act, 2021.

In 2018, commercial surrogacy was prohibited in India with the objective of preventing the exploitation of poor women who rent out their wombs for monetary benefit. The 228th Law Commission Report also highlighted a surge in the number of foreign firms in India that were sourcing Indian women as surrogates at cheap and exploitative prices. Therefore, the current surrogacy law framework imposes certain restrictions on surrogacy. Key considerations include the following:

• The parties intending to have a child through surrogacy must be legally married under Indian law. The wife should be aged between 25 and 50 and the husband should be aged between 26 and 55.
• The parties must place on record a certificate of infertility from the district medical board which attests that the mother is unable to conceive a child.
• The following parties cannot have a child through surrogacy:
• • single males;
  • unmarried females;
  • married couples with a child; and
  • married couples who can conceive a child.
• No Indian can transfer a zygote, gamete or embryo, directly or indirectly, to any party outside India for personal use without the permission of the authorities under the Assisted Reproductive Technology (Regulation) Act.
• The magistrates court must pass an order regarding the custody of the surrogate child.
• Insurance for a period of 16 months must be taken out in the name of the surrogate mother to cover all post-partum treatments and complications.

These safeguards have been incorporated into law to ensure that surrogacy is used only in ethical and altruistic manner, without exploiting surrogate mothers and preventing the abandonment and trafficking of children.

9.2 Are surrogacy arrangements legal in your jurisdiction?

Surrogacy is usually supported by a legal agreement, under which a woman agrees to deliver a child on behalf of a couple or person. In India, there is limited scope for surrogacy, which is restricted to altruistic and gestational surrogacy. Commercial surrogacy is prohibited, implying that a woman may agree to deliver a child for another couple only as an act of ethical altruism.

Surrogacy arrangements are legal and valid in India, as long as they comply with the applicable legal provisions and meet the following prerequisites, among others:

• The parties intending to have a child through surrogacy must be legally married under Indian law. The wife should be aged between 25 and 50 and the husband should be aged between 26 and 55.
• The parties must place on record a certificate of infertility from the district medical board which attests that the mother is unable to conceive a child.
• The following parties cannot have a child through surrogacy:
• • single males;
  • unmarried females;
  • married couples with a child; and
  • married couples who can conceive a child.
• No Indian can transfer a zygote, gamete or embryo, directly or indirectly, to any party outside India for personal use without the permission of the authorities under the Assisted Reproductive Technology (Regulation) Act 2021.
• The magistrates court must pass an order regarding the custody of the surrogate child.
• Insurance for a period 16 months must be taken out in the name of the surrogate mother to cover all post-partum treatments and complications.

9.3 Are the commissioning parents recognised as legal parents in your jurisdiction and what do they need to do to establish a legal relationship with their children born through surrogacy arrangements?

The primary statutes governing surrogacy in India are:

• the Surrogacy (Regulation) Act 2021; and
• the Assisted Reproductive Technology (Regulation) Act 2021.

These statutes provide for the legal status and rights of the commissioning parents and the surrogate mother.

The commissioning parents must obtain an order regarding the custody of the surrogate child from the magistrates court. Once this has been obtained, the child born out of the surrogacy procedure is presumed to be the biological child of the commissioning parents. The child enjoys all rights and privileges available to a natural child under any law that is applicable in India at the time, including:

• the right to inherit property;
• the right to valid citizenship and domicile; and
• the right to live with dignity in the country.

However, if the commissioning parents utilise the services of a surrogate outside India, the child will not be recognised as an Indian citizen.

Furthermore, under current Indian law, the welfare of the surrogate child must be safeguarded in all circumstances. Therefore, if the commissioning couple die before the child is born, the responsibility for raising the child will fall on the nominees of the couple appointed at the time of signing the surrogacy contract. However, at a later stage, the nominees can give up the child for adoption or to an orphanage.

9.4 What laws and regulations govern adoption in your jurisdiction? What specific considerations and concerns should be borne in mind in this regard?

Adoption is the act of permanently placing a child with a parent or parents other than his or her birth parents. Through this process, the parental rights of the birth parents are permanently terminated.

The Children Adoption Resource Authority (hereinafter referred as "CARA") is directly governed by the Ministry of Women and Child Welfare, which was established on the direction of the Supreme Court of India to enact detailed rules on and procedures for adoption. The Hindu Adoption and Maintenance Act, 1956 (hereinafter referred as "HAMA") provides for the adoption of Hindu children by Hindu parents.

CARA: This is an inter-country adoption framework (which is governed by directives of the Ministry of Women and Child Welfare) which facilitates adoption for parents outside the territorial limits of India as well. Under CARA, the religion of the parents is not relevant and a child can be adopted in mixed-religion families. The guidelines require the prospective adoptive parents to be:

• physically, emotionally and mentally stable and sane;
• willing to provide for the minor child; and
• financially secure so that they can provide a safe home to the child they are adopting.

In a progressive approach, CARA does not take the marital status of the adopting couple into consideration. The consent of both prospective parents to adopt is required. In order to ensure that a child is not being adopted in haste, a couple becomes eligible to adopt only if they have been in a stable marital relationship for at least two years. The age difference between the prospective adoptive parents and the child must not be less than 25 years. Only couples with fewer than four children can adopt another child.

HAMA: HAMA aims to facilitate adoption between two known set of parents, as per the customs of ancient India. HAMA is comparatively more limited in scope than CARA, as it facilitates adoption only:

• between persons who identify as Hindus, Jains, Buddhists or Sikhs; and
• within the territorial limits of India.

Under HAMA, the person giving up the child should usually be unmarried, except where custom or practice leads to demanded marriage (as dictated by the custom under which the practice of adoption is exercised). Further, the child should not be older than 16, except where custom or practice so demands. Adoption under HAMA is possible if the child being adopted is not of the same sex as an existing child of the prospective adoptive parents. HAMA is based on traditional religious understanding; therefore, adoption is permitted only under 'necessary' conditions, such as where:

• an unmarried mother wants to give up a child for adoption; or
• a minor girl who gives birth.

9.5 Do the regimes discussed in this question have equal application to same-sex couples? If not, please highlight the differences in treatment.

In India, marriage is accepted and considered valid for heterosexual couples only. Thus, homosexual couples and partners are barred from having a child through surrogacy. Couples in a same-sex marriage are prohibited from seeking the benefits of surrogacy under the Surrogacy (Regulation) Act, 2021.

10 Dispute resolution

10.1 What alternative dispute resolution (ADR) methods to resolve family law matters are available in your jurisdiction?

Alternative dispute resolution (ADR) is increasingly availed of to resolve family disputes and related matters. The ADR methods used in India include arbitration, mediation and conciliation. However, arbitration is specifically excluded for matrimonial disputes, as judgments in rem are excluded from the purview of arbitration. By contrast, recourse to mediation is not only encouraged but also envisaged under statutes such as:

• the Family Courts Act, 1984; and
• the Hindu Marriage Act, 1955.

ADR gives the parties the freedom to opt for more private proceedings, in which they can communicate and collaborate to resolve their issues.

In order to implement the 129th Report of the Law Commission of India, all courts were instructed that once the issues have been framed, disputes should first be referred to arbitration, conciliation, mediation or judicial settlement for resolution. Only in the event of failure of ADR should litigation proceed. In accordance with this goal, Section 89 of the Civil Procedure Code, 1908 affords the parties the opportunity to opt for an amicable out-of-court settlement:

Further, the Family Court Act provides for the establishment of family courts with a view to promoting conciliation in, and securing the speedy settlement of, disputes relating to marriage and family affairs and related matters. Therefore, the family courts have a duty to:

• ensure that mediation or conciliation is attempted; and
• promote amicable settlements.

Arbitration: Arbitration has traditionally been used for commercial and civil disputes, where the arbitrator evaluates the evidence on record and amicably resolves the dispute. Matrimonial disputes are specifically excluded from the scope of arbitration, as judgments in rem are excluded from the purview of arbitration.

Section 23(2) the Hindu Marriage Act states that before proceeding to grant any relief under the act, the court must first endeavour to facilitate a reconciliation between both the parties:

Mediation: Mediation promotes dialogue, understanding and settlement with the assistance of a neutral mediator. Mediation is particularly appropriate for divorce and other family law cases because the parties are likely to maintain a relationship thereafter – especially if there are minor children involved. Mediation also:

• helps to avoid trial uncertainty;
• preserves confidentiality; and
• reduces stress.

The laws and legal rules relating to the settlement of matrimonial disputes include:

• the Hindu Marriage Act;
• the Special Marriage Act, 1954;
• the Family Court Act;
• the Civil Procedure Code; and
• the Legal Service Authority Act, 1987.

The Legal Services Authority Act sets out the concepts of arbitration, mediation, conciliation and agreement in order to effect dispute resolution. The establishment of the family courts means that families now have integrated, broad-based programmes to sustain them and help to stabilise marriage.

10.2 What specific considerations and concerns should be borne in mind in relation to ADR of family matters in your jurisdiction?

When it comes to ADR of family matters – particularly those involving the best interests of the child – several specific considerations and concerns should be taken into account:

• A child-centric approach: The paramount consideration must always be the child's best interests. A child-centric approach should be adopted, ensuring that the child's physical, emotional and educational wellbeing is given due importance in any resolution.
• Mediation: Mediation can be a useful tool for resolving family disputes, provided that it is conducted:
• • with the utmost sensitivity; and
  • keeping in mind the child's best interests.
• The mediation process should aim to foster cooperation and open communication between the parties, with a focus on reaching a resolution that benefits the child.
• Psychological impact: The emotional and psychological impact on the child should be carefully considered. Any decisions or agreements reached through ADR should be evaluated for their potential impact on the child's wellbeing, happiness and stability.
• Expert opinions: In some cases, it may be necessary to seek expert opinions from child psychologists or counsellors to assess the child's needs and determine the best course of action. These opinions can provide valuable insights and assist in making informed decisions regarding the child's welfare.
• Confidentiality and privacy: ADR processes should prioritise maintaining the confidentiality and privacy of the child and his or her family. This is essential to protect the child's emotional wellbeing and safeguard his or her personal information.

Family matters in India are primarily dealt with by the family courts and ADR methods such as mediation and conciliation are encouraged. The Indian judiciary recognises the significance of ADR in resolving family disputes and encourages parties to explore amicable solutions.

10.3 What specific considerations and concerns should be borne in mind where family law disputes involve foreign parties?

Where family law disputes involve foreign parties, specific considerations and concerns should be taken into account, including the following:

• Jurisdiction: The jurisdiction of the court is important in family law disputes involving foreign parties. The Indian court must have the authority to hear the matter and make a decision. Jurisdiction can be based on factors such as:
• • the residence of the parties; or
  • the location of the marriage.
• Choice of law: In cases involving foreign parties, the court must determine which jurisdiction's law will apply to the dispute. The determination of the applicable law can have significant implications for issues such as:
• • divorce;
  • custody;
  • maintenance; and
  • property division.
• In deciding on the applicable law, the court may consider factors such as:
• • the nationality of the parties; and
  • the place of marriage.
• Recognition and enforcement of foreign judgments: If a foreign court has already made a judgment in a family law dispute, the Indian court must determine whether to recognise and enforce it. In doing so, the Indian court will consider factors such as:
• • the jurisdiction of the foreign court;
  • due process; and
  • public policy.
• The welfare of the child: In cases involving custody or guardianship issues, the welfare of the child is of utmost importance. The court will consider factors such as:
• • the child's best interests;
  • the child's cultural and religious background; and
  • the ability of the parties to provide for the child's physical and emotional needs.

11 Domestic violence

11.1 How can a party seek immediate assistance from the court in a domestic violence situation to protect himself or herself and the children, and what kinds of orders can the court make in this regard?

The primary legislation providing remedies against domestic violence is the Protection of Women from Domestic Violence Act 2005 (PWDV). An aggrieved person, a protection officer of the locality or any other person on behalf of the aggrieved person can apply to the magistrate to claim certain types of immediate relief, including the following:

• Monetary relief: The magistrate may ask the respondent to pay monetary relief to cover the expenses incurred and the losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence. These may include:
• • loss of earnings of the victim;
  • medical expenses; and
  • loss caused due to the damage or destruction of any property.
• Custody orders: Under Section 21 of the PWDV, the magistrate may immediately grant custody of a child to the victim or the person making the application in order to protect the child from any potential harm in the abusive household.
• Protection orders: The magistrate may pass a protection order in favour of the aggrieved person upon being satisfied that domestic violence has been committed in the household. The magistrate may prevent the respondent from:
• • committing further acts of violence;
  • entering the household;
  • contacting the aggrieved person; or
  • causing any harm to the dependants of the aggrieved person.
• Residence orders: Under Section 19 of the PWDV, the magistrate may pass a residence order to:
• • restrain the respondent from disturbing the possession of the aggrieved person in the shared household; and/or
  • withdraw from the shared household.

11.2 Are there any differences in terms of the protection offered in a domestic violence situation between married and unmarried couples and their children?

The PWDV governs domestic abuse and violence in India. Under Section 3, 'domestic violence' is defined as any act, commission, omission or conduct of a person that harms or injures or endangers the health or safety of an individual, whether mentally or physically. It further includes any harm, harassment or injury caused to an individual or any person related to that individual to meet any unlawful demand.

Section 2(f) of the PWDV defines a 'domestic relationship' as an arrangement where:

• two people live or have, any point in time, lived together in shared household; and
• those people are:
• related either by consanguinity or marriage or through a relationship in the nature of marriage, adoption; or
• family members living together as joint family.

The ambit of 'domestic relationship' is wide in interpretation and is not restricted to married women. It extends to all women who are at risk of domestic violence at the behest of their husbands, family members or even partners of live-in relationships or de facto marriages. The only prerequisite prescribed under the provision, is that the two persons must have shared a household.

Thus, there is no difference in the treatment or benefits afforded to married and unmarried woman in India to protect them against domestic violence.

In Indra Sarma v VKV Sarma (2013 15 SCC 755), the Supreme Court deliberated on the concept of a live-in relationship in the context of domestic violence. It observed that the definition of 'domestic relationship' under Section 2(f) of the PWDV refers to an arrangement whereby two people live together in a shared household, which includes live-in relationships. This extended the protection under the PWDV to women who cohabit in live-in relationships.

The only point of difference in the treatment of unmarried and married woman is that the law does not provide protection to women who are living in adulterous relationships.

11.3 How are these orders enforced and by whom?

Under the PWDV, the authorities that provide protection and grant relief are judicial magistrates and protection officers. An application may be made by the aggrieved person, a protection officer or any person on behalf of the aggrieved person to the magistrate for immediate relief.

Section 5 of the PWDV sets out the functions of magistrates and protection officers. It states that where an incident of domestic violence is reported to the protection officer, service provider or magistrate, or where one of the aforementioned witnesses domestic violence, the following steps must be followed:

• The victim must be informed of her right to apply for relief under the statute;
• The victim must be informed of the accessibility of services and service providers in a time-bound manner; and
• The victim must be informed of her right:
• • to obtain legal services under the Legal Services Authority Act, 1987; and
  • to file a complaint under Section 498A of the Penal Code, 1860.

11.4 How soon will the party's application be dealt with in these circumstances?

The PWDV seeks to provide immediate protection and effective relief to any victim of domestic violence or abuse. The preferred course of action is to submit a direction application under Section 12 of the PWDV to the magistrate, who can make suitable orders relating to protection, monetary benefit, residence and custody.

The magistrate must fix the date for hearing the application, which generally must not exceed three days from the date of receipt. Further, the magistrate must ordinarily dispose of the application within 60 days of hearing the application. The magistrate has the power to extend the timeframe for disposing of the application if this is in the interests of justice; however, the application must nonetheless be decided in a time-bound manner.

11.5 Does the court have inherent jurisdiction to make a child a ward of court?

In India, the court has inherent jurisdiction to make a child a ward of court. This is based on the principle of parens patriae, which allows the court to act as the guardian of a child in order to protect his or her best interests.

The power of the court to make a child a ward of court is primarily governed by Section 7 of the Guardians and Wards Act, 1890, which allows the court to appoint a guardian for the person or property of a minor. This provision empowers the court to intervene and take necessary steps to safeguard the welfare and wellbeing of a child.

The Indian courts also derive their jurisdiction to make a child a ward of court from various precedents and judicial pronouncements. The Supreme Court and the high courts, through their inherent powers, can pass orders in the interests of the child where this is deemed necessary.

The Indian courts may refuse to make welfare orders for a ward who is unlawfully removed from the place of ordinary residence.

12 Trends and predictions

12.1 How would you describe the current family law landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

The family law landscape in India has been dramatically transformed in recent years through a progressive approach towards separation, the breakdown of marriage, questions of child custody, the division of assets and so on.

Irretrievable breakdown of a marriage: There have been discussions on whether the irretrievable breakdown of marriage constitutes valid grounds for divorce. In its judgment in Shilpa Shailesh v Varun Shreenivasan (TP (C) 118 of 2014), the Supreme Court held that an aggrieved party can approach the court under Article 142 of the Constitution for separation in case of the irretrievable breakdown of marriage. While some have welcomed the move as an attempt to simplify protracted divorce proceedings, others remain sceptical, as marriage is regarded as a sacred tie between two individuals that must not be broken easily. In particular, women in all segments of society are opposed to the move, as it may exacerbate inequality in divorce proceedings. Interestingly, while women who approach the court for divorce on the grounds of the irretrievable breakdown of marriage need not disclose a cause for such breakdown, men must disclose a fault clause in order to seek a divorce on these grounds.

Division of joint marital property and assets: India lacks legislation that can effectively provide for the division of joint marital property and assets. While numerous discussions have recognised the need for legal reform to bridge this gap, no conclusive steps have been taken as yet to introduce legislation on the division of joint marital property in case of separation. This complicates and prolongs divorce proceedings, as effectively dividing the property to the satisfaction of the parties is a complex task.

Dowry practice: While the practice of giving and accepting a dowry was criminalised under the Dowry Prohibition Act, 1961, the law has had very limited impact. In India, dowries are still prevalent as a cultural practice which is deeply rooted in all segments of society. The provisions have not been sufficient to effect social reform and eradicate this practice.

13 Tips and traps

13.1 What would be your recommendations for managing relationship breakdown as painlessly as possible in your jurisdiction and what potential pitfalls would you highlight?

The Indian courts are overburdened with cases pending adjudication and delays are thus significant. The most painless way to end a relationship is thus to arrive at a mutual decision to separate with the assistance of conciliators, mediators and marriage counsellors.

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