Posted in Marriage and family

Battle of Love: Special Marriage Act, 1954

This article has been written by Piyush Bajaj. Piyush is currently a BCom LLB student at Amity Law School, Noida.

Marriage is considered to be a sacrament in our country, as it is the most integral tradition which is being followed from over hundreds of years.

India has been a land where a boy and a girl weren’t allowed to select their partners on their own as it was their parent’s duty because of their thinking that they were a lot wiser and experienced than their children and will decide the best for them. The concept of marriage is considered to be very auspicious in every religion in the country as it is a summit of two souls with the personal laws of every religion being followed.

The influence of caste and religion is enormous in our society especially in matters of marriage as it is considered to be the most important criteria for a properly solemnized marriage. Parents search for the bride or groom in the same cast or religion of theirs, as Inter-cast or Inter-religion marriages are considered to be a taboo. People are forced to marry according to their family’s will or due to the pressure of the society, but the question arises “What if someone wants to marry a person of other caste or religion”? So the society gave the answer to us as “Honour Killing”. The grave need of ending such crimes and to support people who believed in stepping up of the cast or religion barriers, the parliament enacted the Special Marriage Act, 1954. The act provides a special form of marriage in which any citizen of India can marry irrespective of any caste or religion barrier.

This act resolves the problem of caste or religion being a barrier for the people who believe in marrying outside their caste or religion. So here are some features of the act enlisted for a better understanding –

  1. Requirements

To marry under this act, the parties need to file a notice to the Marriage Registrar of the district with the intention of marrying each other, in which one of the party has resided for at least 30 days preceding the date on which such notice is to be filed, then the marriage is said to be solemnized.

  1. Conditions
  • The groom must be of 21 and the bride must be of 18 years of age at the time of marriage.
  • The parties should be mentally fit in order to be able to decide for themselves.
  • They should not be under prohibited relationship or else it will otherwise act as a ground to dissolve their marriage.
  1. General Understanding

The general understanding is that marriages under this act don’t make it any less sacred or invalid. The constitution provides the right to marry any person of their choice, but this idea is supported as well as criticized too because of the influence of arranged marriages over love marriages has brought such situation, which even after so much of legislative and judicial progress hasn’t brought about a major change in the mindsets of people .

Conclusion

After such progress in matters of special marriages, people still face difficulties in accepting it as they feel it is a dishonour to them. But if we look at the positive side of these marriages, they add up to the national integrity. Most importantly the people of the country need to appreciate such marriages between different caste and religion as it will increase equality amongst the citizens and it will also set an example how to love and respect each and every person irrespective of their caste or religion barriers.


The December book bucket

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Posted in Critical Analysis, Marriage and family

Loopholes in the adoption laws in India: A critical analysis

This article has been written by Mohini Singla. Mohini is currently a student in Army Institute of Law, Mohali.

ADOPTION IN INDIA

In recent times adoption was to provide childless parents an opportunity to get their own children but that was to be taken place within the restricted relations. But now the times have changed and adoption laws are framed as to provide JUSTICE TO CHILDREN.

Adoption provides a very important function in Indian society. India has long tradition of child adoption. In olden days, it was restricted within the family and was covered by social and religious practices. But with the changing times, adoption beyond the contour of family has been institutionalized and legalized.[1] But still most of the religions don’t allow adoption which includes Muslims, Christians etc.

NEED FOR A UNIFORM CIVIL CODE FOR ADOPTION

The Hindu Adoptions and Maintenance Act, 1956 is limited to only Hindus to adopt. But still there are many more children left who are orphaned, abandoned. A proposed uniform law of adoption, applicable to all religious communities had been introduced in 1972, but failed due to opposition from the Muslim communities. “Every child has a right to love and be loved and to grow up in an atmosphere of love and affection and of moral and material security and this is possible only if the child is brought up in a family.”  Therefore, if poor, destitute, abandoned children are to be rehabilitated in a legal and safe manner, then there is a great need for a uniform adoption law applicable to people belonging to all religions.[2]

Laws relating to crime and punishment are the same for all citizens in India, and so are the laws relating to commerce, contracts and other affairs. But there are, as is evident from the case laws and the authorities put forth above, that there are no uniform laws regarding family matters in the Indian context. It has been requested since a long time for uniformity in such laws. To treat all citizens equally, one must have same laws for everybody. A uniform civil code in adoption laws will not violate fundamental right to religion. It should be remembered that directive principles of States policy mandate the state to bring uniformity in laws. India being signatory to CRC (Convention on the Rights of a Child), such uniformity is necessary so that the rights of adoptive children can well be enhanced and protected.  Since Adoption is a salient feature of Hinduism, The Hindu Adoptions and Maintenance Act, 1956 statutorily recognizes adoption. The Act brought about significant changes to the law of adoption amongst Hindus and has improved the position of women in this regard. It is absurd that Muslim and Christian Indians cannot legally adopt a child for lack of a uniform code on adoption.

But the action of judiciary aims to bring uniform civil code as in the case of:

Harish v. Nair, 2014 Judgement

The court, however, turned down the plea for declaring the right of a child to be adopted and right of a parent to adopt a fundamental right under the Constitution saying that such order cannot be passed at this stage in view of conflicting practices and beliefs. The right to adopt a child – till now restricted to Hindus, Buddhists and Jains – now extends to Muslims, Christians, Jews, Parsis and all other communities.

In a landmark judgment, the Supreme Court on Wednesday ruled that any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion does not permit it. “The JJ Act 2000 is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption.” The ruling assumes significance as there are over 12 million orphaned children in India but on an average only 4,000 get adopted every year. “Till now Muslims, Christians, Jews and those from the Parsis community only had the power of guardianship in which one possess only legal right on the child till he or she turns an adult. The biological parents have a right to intervene during that period.[3]

Criticism

  1. The first problem with Hindu Adoption and Maintenance Act, 1956 is not religion neutral. It is not equal for all laws. Adoption is only allowed for Hindus and only for those who come under definition of Hindus under Section 2 of Hindu Marriage Act, 1955.

  1. Section 7 and 8 of Hindu Adoption law says that a male or female respectively could adopt son or daughter but this should be son as well as daughter. This s a grammatical mistake which makes the interpretation go wrong.

  1. This Act is against the spirit of Uniform Civil Code. Same law for all should be applied as 66 years on independence we need to have a uniform civil code for everyone to ensure proper justice to all. If not for all laws but for adoption laws there should be uniformity as it will help a lot of orphan children.

  1. The law recognizes age difference of 21 years of age between opposite sex adoption but that should be in case of same sex adoptive parents and adopted child as there can be harassment of child of same sex. Hence the law should also apply to those categories of adoption also.

There is no regular check on children after adoption is done once they are given away there is no check on adoptive parents as how they are keeping the child. In many of leading cases that can be seen.

[1] A.S. Shenoy, Child Adoption Policies in India- A Review, http://unstats.un.org/unsd/vitalstatkb/Attachment482.aspx Assessed on 5th febuarary, 2016.

[2] Need for Uniform Civil Code, The Hindu on 23rd  Janurary, 2015.

[3] Supreme Court gives adoption rights to Muslims, http://indiatoday.intoday.in/story/supreme-court-gives-adoption-rights-to-muslims/1/344463.html Assessed on 5th Febuarary, 2016.

***

The November book bucket

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Posted in Marriage and family, Professional Ethics

Lawyer-Client relationships in divorce cases

This article has been written by Aditi Gupta. Aditi is currently a student in National Law School of India University, Bangalore.

The relationship between a lawyer and a client is one of the most significant parts of the legal process. It has to be a relationship of absolute trust and respect from both sides. In family disputes, especially divorce cases, the lawyer-client relationships are very sensitive.

Section 13 of The Family Courts Act, 1984 restricts the appearance of lawyers in the family courts, thus allowing the disputing parties to represent themselves in court. However, the major issue remains whether the participation of lawyers will be beneficial or detrimental to the case of the parties or take away from the decorum of the Court. However, the number of self-represented litigants or pro-se litigants in India is increasing every year and this provision favours the trend.

According to Sec. 13 of Family Courts Act[1], “right to legal representation-notwithstanding anything contained in any law, no party to a suit or proceeding before a Family Court shall be entitled, as a right, to be represented by a legal practitioner.”

The Indian Courts have held that disputes of personal nature should be adjudicated themselves. In Leela Mahadeo v. Mahadeo Sitaram Joshi[2], the Court was of the opinion that the intention behind Section 13[3] was that it may be advisable to adjudicate matters related to matrimonial breakdown or family disputes as far as possible by restricting entry of lawyers in the courts and hearing the parties to the dispute themselves and by seeking assistance from counsellors due to the personal nature of such disputes.[4]

This provision of the Act gives rise to the question whether the participation of lawyers will be detrimental or useful to the performance and decorum of a family court. The Act prohibits the participation of lawyers in the family courts on behalf of their clients but it authorises the courts to appoint amicus curiae. The advocates argue that this provision deprives the people approaching the Courts of their constitutional right to engage a lawyer of their choice for arguing their case.[5]

However, the Act does not impose a complete ban on entry of lawyers in the Courts and prohibit representation by advocates before the Family Courts. The Act provides for hearing persons other than the parties to the dispute while hearing a case. Section 13 of the Act[6] allows the Family Courts to appoint amicus curiae and seek their assistance and Section 5 of the Act[7] also allows “the association of institutions or organizations engaged in welfare and persons working in the field of social welfare, or professionally engaged in promoting the welfare of the family”.  Therefore, it can be argued that if the Family Court hears anyone other than a party to the dispute, whether it be as amicus curiae or as a legal expert, it must extend this permission to lawyers and allow a party to be represented by a legal practitioner if the said party makes an application requesting the Court for the same.[8]

Though sometimes the participation of the lawyer is an obstacle in proper dispensing of justice, their assistance can sometimes serves a significant purpose. It has been often urged that Section 13[9] should be amended to provide for allowance of advocates to represent the parties if the court feels it to be required in a particular case or if the court is of the opinion that permitting it is necessary for ensuring justice and would facilitate looking into the facts and circumstances of the case.[10] It has also been suggested that an amendment to allow representation by lawyers subject to a proviso which authorises to the Court to terminate a lawyer’s vakalatnama if he employs “delaying tactics by unnecessary adjournments” be made. Such a proviso would ensure that the lawyers are not able to get adjournments and family disputes can be disposed of speedily.[11] The parties would be able to control their own destiny as well as have the comfort of knowing that they can bring in a lawyer if he or she so chooses or feels the need for one.[12]

Such amendments are being considered as self-representing litigants often have difficulty filling the required forms and filing them in the court. Such litigants employ provisions like temporary orders much less, frequently obtain less maintenance after divorces, have less access to tax advice and also utilize the options for alternative dispute resolution much less than those who engage the services of legal practitioners.[13]

Though the Advocates Act and the Bar Council of India Rules provides for a code of professional conduct for legal practitioners. India currently has no set of guidelines or rules laid down by the Court or under any legislation that would be specifically applicable to lawyers dealing with matters of family law such as marital disputes and other conflicts. However, laying down a specific code of ethics or duties to be followed by legal practitioner dealing with such matters and appearing before the Family Courts would allow simplified and proper conduct of lawyers in the Courts which would ensure that the interests of the clients are better represented and the decorum of the court is maintained.

Section 13 of the Family Courts Act prohibits the participation of lawyers in the family courts but does not completely exclude third parties to represent or assist the two disputing parties. Therefore, it has been suggested that limited entry of legal practitioners in the family courts could prove beneficial to the clients and their interests could be better represented.

[1] Section 13, The Family Courts Act, 1984.

[2] Leela Mahadeo Joshi v. Mahadeo Sitaram Joshi, AIR 1991 Bom 105.

[3] Section 13, The Family Courts Act, 1984.

[4] Dr. D.K. Tiwari et al, Commentaries on The family courts Act, 1984, 123 (1997).

[5]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[6] Section 13, The Family Courts Act, 1984.

[7] Section 5, The Family Courts Act, 1984.

[8]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[9] Section 13, The Family Courts Act, 1984.

[10]Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[11] Pg 16, Report on Working of Family Courts and Model Family Courts, Report of the Workshop Held on 20 March 2002.

[12]Austin Sarat et al, Law and Strategy in the Divorce Lawyer’s Office, 20, Law & Soc’y Review. 93, 94 (1986).

[13] Forrest S. Mosten, Unbundling of Legal Services and the Family Lawyer, 28 (3),  Family Law Quarterly, 421,449, (Fall 1994).

***

The November book bucket

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Posted in Debatable topics, Marriage and family, Muslim Law, Personal Laws

Triple Talaaq: Religious empowerment or unjust vindicament

This article has been written by Soma Sarkar. Soma is currently a second-year student at Chanakya National Law University.

 

At-talaaqu marrataan: fa-imsaakum-bima`-ruufin `aw tasriihum-bi-ihsaan. Wa la yahillu lakum `an-ta`khuzuu mimmaa`aatay-tumuuhunna shay-`an `illaaa.

Talaq, Talaq and Talaq!!! Speak the three words in and the civil contract in the garb of Nikah comes to an end. Isn’t it a strange divorce without any justification to the other party and no judicial process requires to be ensued. One spouse enjoins his right, the other mourns over it. One exercises his freedom right at the cost of paralyzing the other with pain and agony, financial crisis and compelling her to lead a dog’s life. In a country where law is the king of kings and vox populi is of paramount importance, it is in the very same country such vindicament being practiced inducing us to believe that there is no Messiah of the victims. No, no not even law.

Talaq-i-Bid’ah, the sinful form of divorce or the best to say the innovated one can be defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: “I divorce you, I divorce you, I divorce you.”  “The Affair of the Necklace” is a very popular episode said to be dealing with this talaq. Aisha who was Prophet’s wife, as the story goes on her way to the city lost her precious pearl necklace. While as a bee she was in search of it in the desert bushes, the caravan went ahead leaving her all alone. In this hour of need she was escorted by a stranger to the city. Seventeenth century was the time period so peoples’ whispering about the incident would not make anyone to bat an eyelid. In order to uproot the rumors along with the character assassination attempts from the grass-root level, the Prophet made a ruling that whoever raising an allegation on Aisha must produce 4 eyewitnesses to the misconduct or face punishment. Credit goes to the mullahs to twist a pro-women ruling into a whip to be cracked on the women themselves. So, today the existence of Sharia brings into light the perverted version of the episode.

 The Apex Court decisions too has been ambigious on the matter in question. Where a writ petition was filed to declare Muslim Personal Law, which enmpowers a Muslim male to give unilateral talaq to his wife without her consent and without resort to judicial process of courts, as void and offending Articles 13, 14 and 15 of the Constitution of India in the case of Ahmedabad Women’s Action Group (AWAG) and others v. Union of India[1]. The Court left the issue down in mouth on the ground that it involved State policies. So the remedy isn’t in form of judicial process that means it must be sought elsewhere. Simultaneously the efforts made by the court to inject some safeguards into the talaq process cannot be given cold shoulder. For a talaq to be effective, it must be pronounced. In Shamim Ara v. State of UP and another[2], a mere plea taken in a written statement of a divorce having been pronounced in the past was held not to be treated as effectuating a talaq. Instead, a talaq has to be ‘pronounced’, i.e. it has to be proclaimed, uttered formally and articulated. Therefore, the Court has introduced a condition precedent for the effectiveness of a divorce.

The approach of the Supreme Court in Danial Latifi v. Union of India[3] in the course of interpreting the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Court upheld that the validity of the Act would be unconstitutional if not construed to mean that women should get a reasonable and fair provision and maintenance.

It has taken 60 years of independence to make us realize that our constitutional values cannot be segregated from our cultural inheritance. Presently it has become the job of the courts to enforce constitutional values. When all forms of gender injustice has been overpowered and captured then why should this stand as a pillar of muslim society? The laws in Egpyt, Iraq, Jordan, Kuwait, Morocco, the Philippines, Sudan, Syria, the UAE and Yemen have  put down their feet. Why should the All India Personal Law Board be allowed to paade these inhuman and illegal practices in the 21st century?

[1] (1997) 3 SCC 573.

[2] (2002) 7 SCC 518.

[3] (2001) 7 SCC 740

 

Posted in Civil Law, Debatable topics, Marriage and family, Personal Laws

Centre To Abolish Triple Talaq, Polygamy

This article has been written by Plash Mittal. Plash is a student of BCom LLB at University Institute of Legal Studies, Panjab University, Chandigarh.

Validity of practices like triple talaq and polygamy needs to be seen in the light of gender justice. They go against the principle of gender equality and are unfair, unreasonable and discriminatory. Taking a firm stand against the controversial Muslim custom of triple talaq and polygamy officially for the first time, the Centre has told the Supreme Court through an affidavit that the practices need to be abolished.

A large number of Muslim countries like Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Turkey, Indonesia, Egypt, Sri Lanka, and Iran, where Islam is the state religion have undertaken reforms in this area and have regulated divorce law and polygamy. Why should India, a secular country, continue to deny Muslim women their rights under the Constitution? The fact that Muslim countries have undergone extensive reform and that the practices are not integral to the practice of Islam or essential religious practices. Under Muslim personal law based on the Sharia, a Muslim man can divorce his wife by pronouncing talaq thrice either consecutively or at three different stages in the presence of an elder male (Talaak-e-Bidat). Muslim men are also allowed to have four wives (polygamy).

The affidavit, drafted by advocate Madhavi Divan, recognized the essential role played by women in a country’s overall development and said it would not only be unconstitutional but a severe impediment in a nation’s development if women were denied equal rights in every sphere of life, including matrimony. It says:

 

  1. Issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality.
  2. The fact that Muslim countries where Islam is the state religion have undergone extensive reform goes to establish that the practices in question cannot be regarded as integral to the practice of Islam or essential religious practices.
  3. Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights; much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reform.
  4. Gender equality and dignity of woman are non-negotiable, overarching constitutional values and can brook no compromise. These rights are necessary in letter and in spirit to realize aspirations.

These rights are necessary not only to realize the aspirations of every woman but also for the larger well-being of society and the progress of the nation, one-half of which is made up by women. Any practice (triple talaq and polygamy) which denudes the status of a citizen of India merely by virtue of the religion, she happens to profess is an impediment to that larger goal.

The Centre said triple talaq, nikah halala and polygamy could not be regarded as essential or integral part of religion and would not be included under the ambit of Article 25 of the Constitution which guarantees a citizen the right to practice and profess a religion of his/her choice. It picked on the affidavit filed by All India Muslim Personal Law Board, which had defended the practice as part of religion-sanctioned custom even while terming them as undesirable.

Gender equality and dignity of women are non-negotiable overarching constitutional values. One section of women in society could never be worse off than the other. The Modi government took a veiled dig at its predecessors for not moving to reform Muslim personal law. The same has not happened for over six-and-a half decades and women who comprise a very sizeable proportion of the said community remain extremely vulnerable, both socially as well as financially.  There is no legal bar against abolishing polygamy and triple talaq, given the march of time and the need for social reform. The Centre feared that such a practice would impact her confidence and dignity.

The All India Muslim Personal Law Board (AIMPLB) strongly batted in support of the unilateral right of Muslim men to pronounce oral divorce through triple talaq, saying that as men, they were better at controlling their emotions, unlike women. The Board has also said that polygamy prevents illicit sex and protects women.

It said “any practice that leaves women socially, financially or emotionally vulnerable or subject to the whims and caprice of men folk is incompatible with the letter and spirit of Articles 14 and 15 of the Constitution”. The government said Muslim women, merely by virtue of their religious identity and the religion they profess, cannot be relegated to a status more vulnerable than women of other religious faiths.

Behind the preservation of personal was the preservation of plurality and diversity among the people of India. The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to as citizens.

Bibliography:

Posted in Criminal Law, Marriage and family, Social Issues

A Need for Acknowledging “Marital Rape” as an “Offence”

This article is written by Pooja Ogale. Pooja is currently pursuing her LLM (Specialization in Constitutional and Administrative Law) from GNLU, Gujarat.

 

 

In the era where people are talking about globalism, development and liberalism, we may still witness the woman position in India entangled in social structures deeply rooted in Indian society in the name of family, religion, caste, community and society. It is a general observation that woman are vulnerable to various crimes in the society. The rate of crimes against women is levelling up day by day. The list of crimes against women is exhaustive; some of the major crimes include dowry death, domestic violence, sexual exploitation at the workplace, rape, female foeticide, abduction etc. The position of the women in the society is vulnerable to exploitation even at a public arena, parental home as well as her matrimonial home.

One of the most important yet neglected contemporary socio-legal issue which is existing in India since time immemorial is the issue of Marital Rape. This concept is gaining consensus in recent times and many debates are going on over the aspect of incorporating ‘marital rape’ as an offence in Indian Penal Code.The Indian Penal Code defines ‘rape’ and provides punishment for the same in it, but the aspect of marital rape is totally neglected.

In order to devise laws over the issue of marital rape, it is important that we know that what constitutes marital rape.“Marital Rape” can be referred as an act of having unwanted intercourse by the husband with his wife by inflicting physical cruelty or violence on her.In the aspect of marital rape the husband is the offender or in other words, he is the rapist. The irony can be observed that when the same act is commenced by the person other than the husband that constitutes rape under the provision of Indian Penal Code and is punishable but when the husband by inflicting force or physical and mental cruelty rapes his own wife is not even considered to be an offence. Woman is considered to be a private property or an object and is subjected to sexual as well as a physical abuse of husband.[1]

Marital Rape is one of the biggest challenges which we are facing in the socio- legal aspect in the society. In Indian culture,a girl is considered to be a burden on her parents and is considered to be a liability for the reputation of their families thus often the offence of the marital rape is neglected. Often the husbands consider their wives as their slaves or as their property and force them to do things according to their wishes. Hence force them to have intercourse by abusing them and with assault also. It is important that the men should respect woman and indulge into intercourse even with their wives with their consent as they are also human beings. It is important that husbands treat their wives as their life partner rather than their slaves or property where they inflict their whims and wishes.

We all acknowledge that marital rape is wrong and it should be stopped and it should be curbed. But the problem is the lack of the legal provisions, lack of legislations. Most importantly there is a lack of acknowledgement of this offence in India. Indian culture connotes sacramental value to the marriage and having intercourse after marriage even by force by the husband without the consent of his wife is not considered to be a rape. It is important that we come out of the cultural and religious beliefs attached to this relation and think in the human rights perspective or in the perspective of the rights of the woman or on the perspective of the morality.

The society should acknowledge the issue and should raise the concern over this issue to be codified as an offence punishable under Indian Penal Code. It is important that the woman despite hiding their plight should come forward and raise their concern over the abuse and cruelty inflicted upon them. Often the women of India in order to save their marriage or in order to uphold the reputation of the parental home or matrimonial home do not raise their voice over this issue and suffer of marital rape.

Mrs Maneka Gandhi, Minister for Women & Child Welfare, has recently, commented that due to the lack of education, poverty, religious beliefs and societal norms it is difficult to make laws on marital rape.[2] There is a need well-enacted law against this evil for protecting women from the non- consensual intercourse with her husband. Marriage even if considered to be sacred should not be considered to be a permit to inflict force on woman for having intercourse. Women should be protected from such abuse and should be respected. There is a need to have legislative provisions to safeguard the interest of the woman and protect them from the sexual abuse.

[1]RathPriyanka, “Marital rape and Indian Legal Scenario”

<Accessible at:  Indialawjournal.com/volume2/issue_2/article_by_priyanka.html>

(Last Accessed on:  16th September, 2016).

[2]Will India have a law against Marital Rape? Pressure on government grows”, June 2016.

<Available at: everylifecounts.ndtv.com/will-india-have-a-law-against-marital-rape-pressure-on-government-grows-3214.>, (Last Accessed on 16th September, 2016).