The Special Marriage Act, 1954: Understanding Interfaith Marriages

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.

April 11, 2025 | By Unsaathi

Divorce Law and Domestic Violence

Divorce Law and Domestic Violence: Legal Protections and Rights Divorce is a complex process, but it becomes more difficult in domestic violence situations. Be it physical, emotional, psychological or both, or all of the above are all impacting factors upon divorce proceedings regarding child custody, spousal support and property division. For victims of domestic violence, it is essential to provide them with solid legal protection as they go through their divorce. This article describes the intersection of divorce law and domestic violence, the legal protection afforded to victims and the actions taken by the legal system to protect victims' rights. What Is Domestic Violence In Divorce Cases Domestic violence is an abusive pattern of behaviours used against a partner to gain and maintain power over them. That abuse can include, but is not limited to, being hit, slapped, choked, etc. Cruelty also includes emotional abuse, psychological abuse (intimidation, gaslighting, threats, manipulation), mockery, humiliation, nonstop censure, etc. Financial abuse, which is controlling money, preventing employment, and withholding financial resources, is also a form of cruelty in marriage. Furthermore, sexual abuse, like being into coerced sex acts, spousal rape, and reproductive control, are also counted as cruelty. An abusive marriage can lead to emotional distress as well as several legal aspects. Domestic violence allegations are taken very seriously by courts, and even more so when children are involved. Section 13,(1)(A) of the Hindu Marriage Act allows cruelty to be a ground for divorce. Section 85 of the Bharatiya Nyaya Sanhita and Section 498A consider cruelty in marriage a domestic offence. Additionally, the definition of cruelty has been elaborated in Section 86 of the Bharatiya Nyaya Sanhita. As defined in the Section 86, Bhartiya Nyaya Sanhita, 2023 "Cruelty" means: 1). If it is one that the woman commit suicide, or which cause harm to the limb or health or danger to life of the woman. or 2). Harassment of a woman, where such harassment is with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Protective Orders for Victims of Domestic Violence Family law and criminal statutes offer various protections for victims of domestic violence. These protections help to guarantee their safety and provide legal recourse against abusive spouses. Protective Orders and Restraining Orders: The first step for victims who want protection is usually a restraining order (or protective order). This legal document bars the abuser from contacting or approaching the victim. There are several types of restraining orders: Emergency Protective Orders (EPO): Law enforcement agencies order these for an immediate protection order, and these are usually only valid for a couple of days. Temporary Restraining Orders (TROs): A court order that is issued, typically lasting a couple of weeks until a full hearing can occur. Permanent Restraining Orders: Issued following a court hearing, provides long-term protection that may last for years. A restraining order can provide you with more protections, including custody of your children, use of your joint home, and access to financial support. Reasons for Divorce Due to Domestic Violence There are several provisions in personal laws like Section 13(1)(a) of the Hindu Marriage Act, section 27(1)(a) of the Special Marriage Act, Section 2 of the Dissolution of Muslim Marriage Act, 1939, etc, that consider cruelty as a ground for divorce in India. The burden of proof remains on the victim. Further, there can be various consequences if the spouse is found guilty. Some of them are: Alimony and spousal support: Alimony and spousal support awards impact if the spouse is found guilty of charges of cruelty in marriage. Courts may favour the victim in financial settlements to prevent continuing economic hardship to them. There are several ways domestic violence victims can qualify for financial assistance: Spousal Support (Alimony): If the victim was financially reliant on their abuser, courts could decide to award them significantly higher alimony payments. Child Support: The abusive spouse must continue to pay for their child's care. Child Custody and Visitation Rights: Child custody in the context of domestic violence becomes a crucial matter. Courts often consider the following when determining what is in the best interests of a child. Thus, the court usually offers custody to the victim parent to safeguard their interests. The court also takes other factors into consideration, like capacity of each parent to offer a stable home. Sole custody may be granted to the victims of domestic violence for the safety of the child. The court may order supervised visitation for the abusive parent, meaning their contact is supervised by a professional or neutral third party. Restitution for Abuse: Some courts grant damages for medical expenses, therapy and other costs incurred as a result of the abuse. Victims may also be eligible for public assistance programs, such as housing assistance and job services, to help them become self-sufficient. Criminal Charges Against Abusers: On the most end, a spouse may face a criminal charge for domestic violence. These charges may include: Assault and battery, Stalking or harassment, Violating a restraining order Child endangerment, etc. Criminal convictions can support females' cases in divorce and custody battles. How a Divorce Lawyer helps in Domestic violence cases For victims who want to get the legal protection and fair outcome they deserve, a divorce attorney with experience in how domestic violence works is a must. An attorney serves as a crucial pillar of support, guiding victims through the intricate divorce process with an emphasis on ensuring their safety. A divorce attorney can: Help you file restraining orders for your immediate safety and further advocate for victims in court for custody, support and equitable distribution of assets. Help you collect proof of the abuse, including medical records, police reports and statements from witnesses. Help the victim negotiate settlements to get financial security. Seek long-term safeguards, like permanent custody and supervised visitation. Also offer emotional support and strength by providing them with the right information. Helps to protect your financial assets. Not only this, the divorce lawyers help to maintain the confidentiality of the case, they also help to file the charges, so that the husband can be punished accordingly. Having a divorce lawyer along with you will always be beneficial as they will act as a shield for you in such complex divorce cases. Divorce Process for Victims of Domestic Violence Survivors who want to escape an abusive marriage should do the following to help themselves be safe and to protect their legal rights: Develop a Safety Plan: Before filing for divorce, the victims should devise a safety plan that includes the strategy's crux, shelter, and temporary housing with family and friends. For example, important documents (IDs, financial records, birth certificates) should be stored in a safe location. Further, having someone you can check in with periodically, especially if someone can alert supportive individuals (e.g., family members), is also important. Gather Evidence of Abuse: The documentation is critical to establishing domestic violence in court. Victims should collect the Medical records describing the wounds along with photos of physical injury or damaged property. Further, the text, email, and voicemails will also act as proof. The testimony from friends, family members, or neighbours is also crucial. Obtain Legal Representation: If you are a victim of domestic violence, a divorce attorney can assist you in the process of filing for divorce, secure restraining orders, and hold your abuser accountable through the legal system. For victims facing financial barriers, legal aid organizations may provide pro bono or low-cost services. Obtain Lawyer, File for Divorce and Protection Orders: Victims should file for divorce once they are in a safe place. At the same time, they should seek protective orders that will prevent the abuser from retaliating. Emotional and Financial Help: Leaving an abusive relationship takes an emotional toll. Victims must reach out for help, such as therapists and support groups focused on recovering from domestic violence. Additionally, they should talk to financial advisors about financial independence. Various community resources offer shelter, food, and job assistance to victims of domestic violence. Court Proceedings and Considerations: The court proceedings must be conducted with the utmost sensitivity to the family’s victims, which, in most divorce cases involving domestic violence, is the victim. Urgent protection can be requested by applying for an expedited hearing. Confidentiality protects private matters. Witness protection (if needed) can be obtained. Courts weigh the trauma effect on testimony. It is essential to have legal representation from skilled attorneys. Victims safety and welfare of children are top in the list of judges leading to a fair distribution of property and maintenance. Evidence of abuse is off the charts. It recognizes how domestic violence is a different crime from others and one that requires balancing the need for justice with the long-term needs of the victim. Conclusion - Empowering Victims Through Legal Protections Domestic violence is one of the grounds for divorce. Further, restraining orders, sole custody rights and financial support are also provided through spousal and child alimony payments. All of these allow victims to pick up the pieces of their lives and have a better future. If you or someone you know has experienced cruelty, seeking legal help early on can help ensure your protection and justice. Adequate legal advice, emotional affording, and financial assistance enable victims to proceed with security and self-assurance.

The Special Marriage Act

The Special Marriage Act, 1954: A Glimpse at Inter-Religious Union in India

Historical Context And Rationale

Essential Features Of the Special Marriage Act of 1954

Solemnisation Of Marriage

Significance of the lecture in present-day India

Risk Assessment and Mitigation of the Special Marriage Act of 1954

The Way Forward

Conclusion