Family Law-I Unit-4 | EMERGING TRENDS IN FAMILY LAW

Chanderprabhu Jain College of Higher Studies & School of Law
Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
CLASS & SEMESTER: B.A. LL.B. (H) III A
SUBJECT: FAMILY LAW-I
UNIT-IV
TOPIC:EMERGING TRENDS IN FAMILY LAW
FACULTY NAME: Ms. Prachi Tripathi
Assistant Professor (Law)

PROVISIONS OF SPECIAL MARRIAGE ACT,1954
• Marriage has traditionally held a sacred place in Indian society, with people placing
the union of two individuals as a couple on a very high pinnacle. Throughout
history, the practice of marriage has accumulated so many norms and ethics that it
has resulted in a union of two families rather than two individuals.
• The legislation was in a desperate need of being amended in order to fit into the
current society setup. Hence, the Special Marriage Act, 1954 of 1954 was enacted
to facilitate inter-caste and inter-religious weddings, in which the couple is not
needed to abandon their faith in order to marry. Registration might even take place
while they preserve their religious identity.

OBJECTIVES OF THE SPECIAL MARRIAGE ACT, 1954
The following are the key goals that may be derived from the Act’s Preamble:
• A specific type of marriage,
• documentation of certain marriages,
• Separation.

PURPOSE OF THE SPECIAL MARRIAGE ACT, 1954
• The purpose of the Act is to establish consistent legal measures to protect those who
want to marry across castes or religions. By establishing a system for inter-faith
marriages, the Act serves the interests of all Indian people.
• The Act includes provisions for lawful marriage, prerequisites for a valid marriage,
dissolution of an inter-faith marriage, marriage registration, and other regulations.
As a result, the enactment of the aforementioned legislation intended to protect
people’s basic rights and enable them to pick their married partners.

APPLICABILITY OF THE SPECIAL MARRIAGE ACT,
1954
• The Special Marriage Act, 1954 extends to all Indian states as well as Indian
nationals living in other countries. Individuals of diverse faiths, such as Muslims,
Hindus, Parsis, Sikhs, or Christians, can marry under this Act. The Act applies not
only to interreligious or inter-caste marriages or love marriages but also to intra-
faith marriages and provides an option to register marriages performed in
accordance with the couple’s personal laws.
• It applies to the whole of India except the State of Jammu and Kashmir and applies
also to citizens of India domiciled in the territories to which this Act extends who
are (in the State of Jammu and Kashmir).

CONDITIONS OF THE SPECIAL MARRIAGE ACT, 1954
• Firstly, both parties should be monogamous at the time of marriage; that is, neither
party should have a living spouse at the time of marriage.
• Second, both parties must be mentally fit and, in a position, to make their own
decisions; that is, neither party should be of unsound mind, suffer from any mental
ailment, or have been subject to recurrent outbreaks of insanity.
• Third, the man must be at least twenty-one years old and the female must be at least
eighteen years old at the time of marriage.
• Fourth, the parties must not be within the degrees of forbidden kinship; that is, they
should not be blood relatives.

DIVORCE
• Adultery- The respondent to the case has committed adultery since the
solemnization of the marriage. Adultery is the matrimonial offence in which a
married person and a person of the opposite sex, other than the wife, have
consensual sexual intercourse during the subsistence of the marriage.
• Desertion- The respondent must have deserted the petitioner without cause for at
least 2 years before the petition was submitted. In essence, desertion means
intentional permanent forsaking and abandonment of one spouse by the other
without the consent of the other and without reasonable cause.
• Imprisonment- The respondent is subject to a seven-years or more imprisonment
decree for an offence laid down in the Indian Penal Code.

• Unsoundness of mind-The respondent must be of unsound mind, which is
incurable. The burden of proof lies with the petitioner that the respondent is of
unhealthy mind or has suffered from such a kind of mental disorder continuously or
intermittently and to such an extent that it is not reasonable to expect the petitioner to
live with the respondent.
• Venereal Disease- The respondent must be suffering from venereal disease in a
communicable form. Where it is not contracted from the petitioner who provides
evidence that he or she has not had any intercourse with any person other than the
respondent, it is a prima facie case that the respondent had committed adultery.
• Leprosy-The respondent should have been suffering from leprosy and the disease
must not be contracted from the petitioner. Proving the disease have a communicable
nature is not necessary.

• Leprosy-The respondent should have been suffering from leprosy and the disease
must not be contracted from the petitioner. Proving the disease have a
communicable nature is not necessary.
• Not heard as being alive- The respondent has not been heard who are closely
related to the respondent as being alive for not less than seven years.
• Husband is guilty of Rape, Sodomy or Bestiality- The wife can make a petition at
the District Court on the ground that her husband has been guilty of rape, sodomy,
and bestiality since the solemnization of marriage. These are also grounds for
prosecution on criminal charges.

SURROGACY LAW IN INDIA 2021
• Certificate for eligibility: Surrogacy is available only to Indian couples, married for
at least 5 years. The husband must be between 26 and 55 years of age and a wife
between 23 and 50 years.
• Indian couples having biological or adopted children are prohibited to undertake
surrogacy. There are some exceptions if the couple has children who are mentally or
physically challenged children or suffering from a life-threatening disorder or fatal
illness.

CERTIFICATE FOR ESSENTIALITY
• According Surrogacy Law There should be an order of parentage and custody of the
surrogate child passed by a Magistrate’s court.
• Insurance coverage must be bought for a period of 16 months covering postpartum
delivery complications for the surrogate.
• The surrogate mother should be married and have a child of her own. She can be a
surrogate mother only once in her lifetime.
• The surrogate mother must be a close relative of the couple. She cannot be given
payments, rewards, benefits, or fees, except the medical expenses and related
expenses and the insurance coverage.

FEATURES OF SURROGACY LAWS
• Registered clinics: All surrogacy clinics must be registered with the government
and only then the procedure can be conducted.
• Surrogacy boards: National Surrogacy Board (NSB) and the State Surrogacy
Boards (SSB have to be set up. They advise the government in laying down the
code of conduct of surrogacy clinics and review the implementation of the Act.
Authorities are constituted at national and state levels to grant or suspend licenses,
check on complaints of breach of the Act’s provisions and carry out other related
tasks.
• Surrogacy Law on Punishment: Practicing commercial surrogacy allows
imprisonment for a term of at least 10 years and a fine extending to Rs 10 lakh.

CRITICISM
• Violates test of equality: Putting conditions such as nationality, marital status,
sexual orientation or age does not pass the test of equality.
• Beyond state domain: Reproductive autonomy, inclusive of the right to procreation
and parenthood, is beyond the domain of the State.
• Violates right to privacy: The certificate to prove infertility violates individual’s
privacy. This goes against the right to life under Article 21 of the Constitution.
• Harsh punishment: The punishment of 10 years of imprisonment and a fine of Rs
10 lakh for a medical practitioner for violating provision of the Act is very harsh.
• Patriarchal norms: Critics say that the new law imposes patriarchal norms on a
woman by not giving any economic value to women’s work.
• Altruistic nature: Altruistic surrogacy limits the option of the intending couple in
choosing a surrogate mother as very limited relatives will be ready to be a
surrogate.

LIVE-IN RELATIONSHIP
• Live-in relationships are still considered beyond the pale in India. But, in a country
where parents sometimes even murder their children for marrying out of caste, many
brave couples do live together without getting married. They face social opprobrium
and many legal hurdles. Since I am on the verge of such a relationship, I thought it’s
worth preparing a guide on what a couple intending to live together should be
prepared for.
• In many other countries, there has been a broader understanding of the idea of a
couple and a family, which can be seen in their legal recognition of prenuptial
agreements, cohabitation, civil union, and domestic partnership. In India, the
Domestic Violence Act 2005 included within its purview live-in relationships under
which a woman having a man “a relationship in the nature of marriage” can go to
court. if abused.

LEGAL STATUS OF LIVE-IN
• In most western countries there is a broader understanding of the idea of a couple in
a relationship, which is evident in their legal recognition of prenuptial agreements,
civil and domestic union of couples, etc. However, it is not the same in India.
• The Apex Court in so many of its judgments has stated that if a man and a woman
“lived like husband and wife” in a long-term relationship and even had children, the
judiciary would presume that the two were married and same laws would be
applicable.
• In another instance, the Apex court even declared that for a man and a woman in
love to live together is part of the right to life and not a “criminal offence”.
Therefore, live-in relationships are legal in India.

DIFFERENCE BETWEEN MARRIAGE AND LIVE-IN
• Marriage: The institution of marriage is a socially and ritually accepted union and
a contract between spouses that institutes rights and legal obligations towards each
other. In light of the diverse culture in India, separate laws have been formulated
which lay down the procedure and guidelines for the proper execution of marriages
in various religions. In addition to the law of maintenance under personal laws,
Section-125 of the Code of Criminal Procedure also provides for maintenance if the
wife is unable to maintain herself.
• Live-in relationship:There is no law binding the partners together, and
subsequently, either of the partners can walk out of the relationship, as and when
they wish to do so.

IVF-IN VITRO FERTILIZATION
• IVF is an advanced type of fertility treatment in which fertilization takes place
outside of the body that is used to treat infertility where other types of Assisted
Reproductive technology like surrogacy, etc failed. It can be described as a process
where a woman’s egg and man’s sperm is combined in a laboratory. A woman has
to undergo many IVF treatments before she gets pregnant.
• IVF is suitable for people who are suffering from infertility. Women who have
damaged, blocked or missing fallopian tubes are recommended to have IVF. Since
it bypasses the fallopian tube completely it is a good option for them.

Family Law-I Unit-4 | EMERGING TRENDS IN FAMILY LAW

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