Child Custody After Divorce: Rights, Laws & Best Practices

April 28, 2025 | By Unsaathi

The Special Marriage Act

The Special Marriage Act, 1954: A Glimpse at Inter-Religious Union in India In a diverse country like India, where personal laws often get associated with one's religion, the Special Marriage Act of 1954 is like a secular and inclusive light. It creates a legal framework for solemnising marriages between persons of different faiths or between persons who opt out of their respective religious personal laws. This act is a reaffirmation of India to the world and why we hold individual liberty paramount to any concept behind the sky that even mentions the individual right to a life partner, regardless of the social or religious dogma around. The blog discusses the complexities of the Special Marriage Act of 1954, highlighting its historical background, relevant provisions, procedural aspects, and significance in modern-day India. Historical Context And Rationale The Special Marriage Act of 1954 (Act No. 43 of 1954) was promulgated on October 9, 1954, repealing the earlier Special Marriage Act (Act No. 3 of 1872). The 1872 Act was found to be because it required one to renounce one's religion to marry under its provisions. Thus, the Act of 1954 was an attempt to reform this anomaly and provide a more secular framework for marriages. The primary justification for the Special Marriage Act of 1954 was that: Advocate for Secularism: To enable interfaith marriages on legal grounds without requiring any conversion. Preserve Personal Freedom: Defend the right of individuals to choose their life partners regardless of social or religious constraints. Uniformity in Marriage Laws: To provide a common legal framework for marriages without religious personal laws. Grant Legal Status: To confer legal recognition and protection to marriages solemnised under its provisions. Essential Features Of the Special Marriage Act of 1954 The act contains provisions regarding the solemnisation and registration of marriages. Valid Marriage Requirements: Both parties must be single at the time of marriage (no living spouses). Parties should not be unable to give valid consent due to unsoundness of mind. Further, both parties should not fall within the degrees of prohibited relationship unless the marriage is allowed by the custom or usage governing each of them. Males should be at least 21 years of age, and for Females should be at least 18 years of age. Notice of Intended Marriage: Notice in respect of parties who intend to marry each other under the act in the prescribed form is to be given to the Marriage Officer having jurisdiction in the district where any one of the parties shall have resided for a period of not less than 30 days immediately preceding the date of such notice. The Marriage Officer publishes this notice prominently in their office. Objections to the Marriage: Any person may file an objection to the marriage within 30 days of publication of the notice in specified circumstances, such as on the ground that the marriage would contravene the conditions mentioned above. The Marriage Officer enquires into the objections and may permit or refuse the marriage. Solemnisation of the Marriage: If no objection is raised or if the protest is rejected, the marriage may be solemnised at the Marriage Officer's office or any other place within three months of filing notice. The marriage is solemnised before three witnesses. Registration of the Marriage: The Marriage Officer registers the marriage in the Marriage Certificate Book, which the parties and witnesses sign. This registered certificate serves as a solid proof of the marriage. Restitution of Conjugal Rights, Judicial Separation, and Divorce: The act sets down certain rights and liberties of parties during the continuance of marriage (though it is valid for marriages solemnised under its provisions), such as restitution of conjugal rights, judicial separation, and divorce, among others. The grounds for divorce are similar to those under secular divorce laws. Matters of Succession: The succession of property under marriages solemnised under this act shall be governed by the Indian Succession Act, 1925. Procedures for filing under the Special Marriage Act of 1954. Solemnisation Of Marriage There are various steps involved in solemnisation of marriage under the act: Notice of Intended Marriage: Both parties shall give a notice of intended marriage to the concerned Marriage Officer of the district in which at least one of them has been residing for 30 days. Aggregation: The Marriage Officer publishes the notice and has a 30-day window for objecting. Objections: In case there are any objections, the Marriage Officer will investigate and decide if they are valid or not Solemnisation: If there are no objections or they are overruled, then the marriage is solemnised in the presence of three witnesses. Registration: The marriage becomes legally valid once registered in the Marriage Certificate Book. Significance of the lecture in present-day India The relevance of the Special Marriage Act of 1954 lies in contemporary India, as mentioned below: Interfaith Marriages: This allows couples to marry without being required to convert. With the world's growing interconnectedness and the increase in interfaith relationships, this act provides legal protection and acknowledgement of these unions. Mutual Consent: There is no lifelong tie, and it breaks the myth that you must spend the rest of your life with your partner. Secularism: Although not discriminatory based on religion, it helps save the secular fabric of the Indian Constitution by offering a neutral legal framework for marriages - uniformity in divorce and maintenance provisions for all genders, etc. Legal protection: It ensures safety and strengthens the rights of those who decide to marry under its terms. Risk Assessment and Mitigation of the Special Marriage Act of 1954 Despite the same, the Special Marriage Act of 1954 does have specific challenges: 30-day Notice Period: The 30-day notice period to raise objections is intrusive and may invite social pressure/interference, such as in conservative communities. Low Awareness: The Act is little known, and even fewer people know how to take advantage of its provisions. Bureaucratic Hurdles: The procedural requirements are pretty cumbersome and time-consuming, discouraging many couples from choosing this route. Social stigma: There can be social stigma related to couples who choose to marry under the act. Couples can also face disapproval from their families or communities. The Way Forward Some of the significant improvements that can be proposed to make the Special Marriage Act of 1954 more effective and accessible are: Less Red Tape: Easing procedural implications and red tape. Public Awareness Campaigns: It is highly suggested conducting public awareness campaigning to make people aware about the act and its advantages. Combating Social Stigma: Encouraging inter caste marriages and marriage performed through the act. Updating the Provisions: Modernising the provisions of the act to address contemporary social realities and emerging legal challenges. Legal aid: Assisting legal aid. Legal and counselling services are provided to those couples intending to marry by the act. Conclusion Introduced in 1954, the Special Marriage Act is an essential piece of legislation that has played a meaningful role in safeguarding the values of secularism, individual liberty, and gender equality in India. The purpose of civil unions is to create a legal structure for marriages that cross religious and social lines and be legally recognised and protected. The act sticks to its relevance in present-day India, notwithstanding the hurdles. With the constant changes in our society, it is essential that this legislation stays relevant and correctly addresses and represents the needs of those who it is being designed to protect. Also, it will facilitate the promotion of its use and thus strengthen India's commitment to a just and inclusive society.

April 24, 2025 | By Unsaathi

Myth Buster

Myth Buster: Alimony in India is not for females only Many of the conversations about divorce and its financial effects bring to mind the woman who is seeking alimony from her ex-husband. Though post-marital financial maintenance has, historically, and even in today's world, been a right of the female spouse, the fallacy that post-marriage alimony or, in fact, maintenance, as termed under Indian law, is an exclusive right of a female spouse is an oversimplification and therefore requires a precise disambiguation. The legal context in India, although evolving and practically delicate, takes into account the financial vulnerabilities that any spouse (i.e. the husband as well as the wife) may encounter upon the breakdown of a marriage and offers a mechanism for seeking maintenance, irrespective of the gender of the party in need. Understanding the Concept of Alimony and Maintenance in India Though the terms are used interchangeably, maintenance is the more legally accurate term, according to the Indian perspective. It refers to the financial support that one spouse pays the other, either during the pendency of a legal separation or divorce proceedings (interim maintenance) or after the divorce is final (permanent alimony or maintenance). The rationale for maintenance is to prevent both spouses from being rendered impoverished or forced to accept an unreasonably reduced standard of living — especially when a spouse is financially dependent on the other during the marriage. The Legal Framework Governing Maintenance: The right to claim maintenance in India is codified in various statutes, given the diversity of personal laws that operate between various religious communities: Section 125 of the Code of Criminal Procedure (CrPC), 1973 and Section 144 of the Bhartiya Nagrik Suraksha Sanhita, 2023: This is a secular provision that provides a speedy and summary remedy for the maintenance of wives, children (legitimate or illegitimate, minor or major unable to maintain themselves), and parents unable to maintain themselves. Significantly, the expression "wife" under this segment has been interpreted to include women who have been separated through divorce or a decree of judicial separation. Historically, section 125 and section 144 does not explicitly prevent a husband in financial distress from seeking aid, although the practical application of it in favour of a man seeking recourse has been less common, with attention instead primarily focused on allocating support for dependent women and children. Hindu Marriage Act, 1955: The act governs marriages among Hindus, Buddhists, Jains and Sikhs. Section 24 is for maintenance and alimony during the litigation and expenses of proceedings to be awarded to the wife or the husband in case he or she does not have enough independent income for her or his support. Permanent Alimony and Maintenance: Section 25 of the Act gives the court jurisdiction to direct either the wife or the husband to pay a gross sum or a monthly or periodical sum to the other spouse for purposes of maintenance until the death of the person receiving the maintenance, or until the marriage of the person receiving maintenance, or until the person receiving maintenance has sexual intercourse with any population outside of marriage (in the case of husbands) or has not remained chaste (in the case of wives.) This provides both spouses with the right to claim maintenance. Special Marriage Act, 1954: The act allows civil marriages for all Indians, regardless of religion. Section 36 relates to alimony pendente lite and the expenses of proceedings, and Section 37 deals with permanent alimony and maintenance — similar to the provisions of the Hindu Marriage Act, the parties are able to claim maintenance on similar terms. The Divorce Act, 1869 (for Christians): This Act applies to the divorce of Christians in India. Sections 36 and 37 are related to alimony pendente lite and permanent alimony, which are traditionally directed towards relief to wives, but the language contained does not, and should not be interpreted, to exclude the idea that a man should also claim maintenance, if he is a financially dependent person and is unable to earn under exceptional circumstances. Personal Laws Applicable for Muslims: The maintenance of divorced Muslim women is mainly governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986, which provides reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. After this period, the burden of furnishing maintenance to a missus Muslim who cannot support herself shall be placed upon her relatives who would inherit her, and in the absence of such relatives, the State Wakf Board. This act speaks of only the divorced Muslim women's rights; however, the principle of equity and justice may entitle a dependent husband to maintenance under relevant provisions of law. Considerations Of The Courts When Deciding Maintenance Indian courts consider various evolving factors for granting maintenance and plain determination of the quantum. And these influences are to promote a fair and just result for both parties: Financial needs and earning capacity of the applicant's spouse: The court examines whether the applicant's spouse can support himself or herself independently, taking into account educational background, age, health, skills, and the availability of the job. A spouse who is genuinely unable to earn enough to support themselves, nonetheless, would be seen favourably by the courts if they were to claim maintenance. Financial Resources and Earning Possibilities (of the non-applicant spouse): The court also examines the income, assets, and financial obligations of the spouse requested for maintenance. Whether this spouse is in a position to provide aid without excessive burdens is, therefore, an important question. Standard of living: The lifestyle enjoyed by the couple during their marriage is one factor, but the court acknowledges that the standard of living after their divorce may have to be different. The purpose is to avoid a significant and unfair decline in the quality of life of the economically weaker partner. Length of the Marriage: The longer the marriage, the more likely the couple has become financially interdependent, and the courts are persuaded to award permanent alimony or a large maintenance amount, especially if one of the spouses has been out of the workforce for an extended period of time to care for the family. Conduct of the Parties: Fault-based divorce has slowly become unfashionable; however, the conduct of the parties during the marriage may still be a relevant factor in determining maintenance. For example, if the applicant's spouse has committed adultery or has been guilty of cruelty, it may affect their eligibility for or quantum of maintenance. Likewise, if the non-applicant spouse's behaviour was the cause of the marriage breaking down and the other spouse suffers financially, this may bolster the maintenance claim. Other Relevant Circumstances: Courts have the discretion to look at any other factors that they feel relate to the particular situation of the case, allowing for an overall and fair evaluation. Factors could include things like dependent children, health issues for either partner, and one partner making a major move to bolster the other partner’s career or financial viability. Men have a right to maintenance, too - An evolving perspective. Several acts had formal provisions for men to seek maintenance under certain circumstances, but in practice, they would often lose out due to societal customs and traditional notions of gender roles. However, societal changes, recent awareness of gender equality issues, and a significantly growing number of men rising from divorce financially wiped out (for example, when the wife is the main provider or when the husband sacrifices his whole vocation to care for the family) more advantages of these provisions for men pandemic. These maintenance laws are written with an understanding of gender neutrality. In landmark judgments, it has been held that entitlement to maintenance should stem from true financial need and inability to fend for oneself, not be a product of gender stereotypes. Alimony claims of men who had been homemakers, who endured career sacrifices in support of their wives’ ambitions or who are disabled and unable to earn are getting more sympathetic treatment, even in the courts. Costs and Challenges:Though the legal framework and changing interpretation of the law are helpful, certain practical challenges exist in implementing men’s right to alimony. Societal Stigma: Even if they have the right, men who are looking for alimony might still face social stigma and ridicule, which could be a deterrent from exercising their legitimate legal rights. The burden of Proof: The burden to prove financial dependence and inability to maintain oneself often rests squarely on the applicant, and men might find themselves under suspicion for having an easier time establishing this, especially in patriarchy. Lack of Awareness and Access to Legal Aid: Men may be unaware of their right to claim maintenance, and those with financial limitations may not have access to legal aid and counselling. Maintenance and Alimony Laws for Gender Neutral Justice To say that alimony is for women only is a false premise that is easily disproved. Both spouses have the right to seek maintenance according to their actual needs and lack of means of livelihood after the dissolution of marriage under the legal framework consisting of personal laws and other secular laws. Although women may have historically been the primary target owing to the socio-economic structures present, the principles of gender neutrality have now been recognized more and more in judicial action. The changing nature of relationships and the increasing variety of financial situations mean that the context around maintenance needs more consideration. A more gender-neutral application of these laws encourages other men leaving the household to escape that potential financial vulnerability and would allow women in a similar situation to seek recourse under the law and to have a similar paying capacity in life after divorce, a life of dignity and self-respect towards their future efforts. The emphasis must continue to be on real financial needs and outcomes regardless of the gender of the person applying, thus reinforcing the tenets of justice and fairness in Indian law.

April 21, 2025 | By Unsaathi

How to Challenge a Divorce Settlement

How to Challenge a Divorce Settlement: Legal Options and Procedures The finalisation of a divorce settlement by a family court in India includes immense legal potency with which the former spouses settle down to a new life post-divorce. It comprises critical legal issues such as the division of assets and liabilities, child custody and visitation rights, and alimony or maintenance. However, notwithstanding the presumption of finality, there can be cases where the settlement is deemed by one party or the other as unfair, inequitable or obtained by questionable means. According to Indian law, the grounds and procedure for contesting a divorce are the way to challenge the divorce settlement. A complete guide on what can be done to challenge a divorce settlement in India How is a Divorce Settlement Binding? Before we look at how to challenge a settlement, it is vital to understand why they are usually binding. However, suppose both parties are legally divorced and agree to the terms of a divorce settlement, and such settlement is ratified and incorporated into a decree of court. In that case, it becomes a legally consummated, enforceable instrument. Courts favour the finality of such agreements because they reflect the parties' agreement to settle marital disputes without protracted litigation. It is the principle of the sanctity of contracts and the need to end emotionally charged litigation that makes divorce settlements binding. Grounds to Challenge a Divorce Settlement Although contesting a finalised divorce settlement is daunting, there are compelling grounds in India for a court to revisit or cancel a settlement agreement. These grounds are mainly related to problems that go to the consent's authenticity or the result's fairness. Fraud or Misrepresentation: Along with the tasks, this may include examples of fraud or misrepresentation. Suppose one party fails to disclose meaningful financial information, misrepresented assets or liabilities, or provided false information that had a material impact on the other party's decision to enter into the divorce settlement. In that case, it may be a ground for challenge. Suppose one spouse concealed significant assets during negotiations, resulting in an unfair property division, for example. In that case, the aggrieved spouse may want to challenge the settlement if they later discover the concealment. Coercion or Undue Influence: A settlement agreement is binding only if the parties to the contract agree freely and voluntarily. If the person agreeing has been forced, threatened, or unduly pressured by the other party into the stipulation against their will, the accord can be challenged. Coercion or undue influence is notoriously difficult to prove, but it requires showing that the applicant's free will was overcome in the negotiation process. Mutual Mistake of Fact: If both parties had a fundamental misunderstanding of a material fact when entering into the settlement, and this mistake substantially affected the terms of the agreement, a court may consider voiding it. So, say one side knew about a boatload of debt, which neither side knew about, and the boatload of debt would affect how the parties agreed to divide the debt. Lack of Legal Capacity: If either party did not have the legal capacity to create a binding agreement at the time of the settlement (for instance, if one party was mentally incapacitated or was a minor and not represented), the settlement may be challenged. Unconscionability or Gross Inequity: In very narrow circumstances, if the terms of the settlement are so grossly unfair and inequitable as to shock the conscience of the court, the settlement may be found unconscionable and reviewed. But courts are generally reluctant to unsettle settlements simply because they seem unfair — unless they present a level of inequity so great that it looks like coercion or fraud. Change in Circumstances (Limited Application): Though a great change in the scenario normally grounds modification of terms/clauses (support or alimony) that are not the whole settlement, once a marriage settlement is final, small changes in circumstances are generally ignored; extreme or unexpected changes in circumstances that go to the underlying premise/signature of the settlement are very rarely a basis to challenge the whole settlement. Challenging a Divorce Settlement: Legal Options and Procedures The legal options and procedures available will vary depending on the stage of the divorce proceedings and the specific grounds for the challenge: Challenging Before Final Order/Decree (Mutual Consent Divorce) Divorce by Mutual Consent In this case, both parties have to file a joint petition. Even after the first motion is filed and a cooling-off period is granted by the court (usually six months), either of the parties can withdraw their consent before the final decree of divorce is passed. If either party withdraws her consent, the mutual consent divorce cannot proceed, and the settlement agreement, contingent on the agreement being granted, becomes void. In that sense, the party seeking to challenge the settlement has done so by revoking consent to the divorce and, by doing so, effectively ensures, for all intents and purposes, that the divorce never happened in the first place. Notice of Appeal from the Decree Incorporating the Divorce Settlement Once a divorce decree that includes the settlement agreement has been issued, disputing it becomes more complicated. You may also file an appeal against the decree before the super court (usually the High Court). However, the grounds for appeal must fit within the above categories (fraud, coercion, mistake, etc.). Period D Limit: The appeal needs to be filed within the prescribed limit from the date of the decree. This timeline is based on the rules of each particular High Court but is usually between 30 and 90 days. Failing to meet this deadline may prove fatal to the appeal. The grounds in the form of contentions should be clear enough in the Appeal Petition as to why the challenge is brought against the settlement and the decree, with the evidence and legal arguments. Filing and Service: File the appeal petition with the appropriate court of appeals with any notices and accompanying court fees. You'll also need to serve the petition on the other (your ex-spouse). The appeal: The appellate court reviews the lower court records, the settlement agreement, and the positions of both parties. It will also likely be allowed to hear oral arguments of the counsels. The appellate court can either affirm, modify or set aside the decree passed by the lower court. Filing a Petition for Review: Under restricted conditions, a party can appeal to the same court which issued the original decree. Generally, the review petition shall be entertained only in case of discovery of new and vital evidence which was not in the party's knowledge at the time of the decree or there is a mistake or error apparent on the record. There is no chance to re-hear the whole case, and the scope of review is limited. How to File a Suit to Set Aside the Settlement Agreement Under some circumstances, especially when significant allegations of fraud or coercion and detailed proof and examination are required, a separate civil action is brought seeking a declaratory judgment that a settlement agreement is rendered void or voidable based on the claimed vitiating factors. This makes for a fuller trial where evidence may be led and witnesses called. If the suit succeeds, the settlement agreement can be invalidated, which could result in a new determination of the terms of separation. Evidentiary Requirements: A successful challenge to a divorce settlement demands compelling evidence in support of the claimed grounds. This evidence may include: Financial Documents: Statements, deeds, tax returns, and valuations to show the hiding or manipulation of assets. Communication Records: Emails, text messages and tapes (if admissible by law), potentially demonstrating pressure or undue influence. Medical Records: To show a lack of legal capacity at the time of the settlement. Witness Testimony: Affidavits or oral testimony from people who can corroborate the claims of fraud, coercion or mistake. The Significance of Legal Representation Fighting a divorce settlement is not an easy task, as there are legal intricacies regarding family law, civil procedure and evidentiary rules that a litigant has to contend with. You should definitely consider consultation with an experienced family law advocate who can evaluate the strength of your case and recommend the best course of action. They also help collect and compile the requisite evidence. Further, prepare the necessary legal documents and represent you effectively in court. You are also taught how to deal with the procedures and be lawyer-compliant. Effects of a Successful Challenge However, when a divorce settlement is successfully challenged, the court may set aside or modify the original settlement agreement and, consequently, the decree. This would only require a new negotiation over or adjudication of the separation terms — such as sharing the structure of property, custody of children and maintenance. The results of this process will be based on the unique facts and circumstances of the particular case and the governing laws. Conclusion It is very challenging to challenge a divorce settlement in India; it is a legally complex process involving a very high burden of proof. Although the law does take into account that, in cases of fraudulent, coercive, or fundamentally erroneous settlements, it should not take into force the need to overturn a settled agreement comes with a high burden of proof and adherence to defined legal processes. An insight such as the best legal strategies, why they may be challenged, or the need for experienced legal counsel would all be critical in life-changing actions. When pursuing the challenge to a divorce settlement, one must consider the cost, time, and potential outcome to make decisions based on a fair and just resolution of a marital dispute.

Child Custody After Divorce

Child Custody After Divorce: Law and Significance

Child Custody: Its Meaning and Types

Types of Custody Arrangements:

Steps to Initiate Child Custody After Divorce

Step 1: Initiating the Process

Step 2: Petitioning for Custody

Step 3: Mediation & Negotiation

Step 4: Hearing at Court

How Judges Determine Child Custody?

Visitation right – Why is it essential?

Some important things to know about visitation:

Challenges and Emotional Considerations in Custody Battles

Tips for Parents Dealing with Child Custody After Divorce

Child Custody After Divorce: Key Takeaways and Conclusion