Law Commission floats Consultation Paper on Family Law Reform

This consultation on family law reforms in India discusses a range of provisions within all family laws, secular or personal, and suggests a number of changes to in the form of potential amendments and fresh enactments.

Highlights:

As general suggestions to reforming family law, the paper discusses the introduction of new grounds for ‘no-fault’ divorce accompanied by corresponding changes to provisions on alimony and maintenance, rights of differently-abled individuals within marriage, the thirty-day period for registration of marriages under Special Marriage Act; uncertainty and inequality in age of consent for marriage, compulsory registration of marriage, bigamy upon conversion etc.

Under Hindu law the paper among other issues discusses problems with provisions like restitution of conjugal rights, and further suggests the inclusion of concepts such as ‘community of property’ of a married couple, abolition of coparcenary, rights of illegitimate children et al.  There are further suggestions for addressing self-acquired property of a Hindu female.

Under Muslim law, the paper discusses the reform in inheritance law through codification of Muslim law on inheritance but ensuring that the codified law is gender just. The paper also discusses the rights of a widow, and the changes apply to general laws such as the introduction of community of (self-acquired) property after marriage, the inclusion of irretrievable breakdown of marriage as a ground for divorce.

Under Parsi law, there are suggestions relating to protecting married women’s right to inherit property even if they marry outside their community.

Adoption process: The paper also suggests the expansion of the Juvenile Justice (Care and Protection) Act, 2015, to make it into a robust secular law that can be accessed by individuals of all communities for adoption. There are suggestions for amending the guidelines for adoption and also a suggestion to alter the language of the Act to accommodate all gender identities. The paper discusses lacunae within custody and guardianship laws, statutory or customary, and suggests that the ‘best interest of the child’ has to remain the paramount consideration in deciding matters of custody regardless of any prevailing personal law in place.

Special attention to North- East: Although the sixth schedule provides exemptions and exemptions to states in the North East and tribal areas, it has suggested that efforts of women’s organisations in these areas be acknowledged and relied upon in this regard to suggest ways in which family law reform could be aided by the state even when direct intervention may not be possible. Since a number of these issues such as polygamy, nikah halala, settlement of a Parsi wife’s property for benefit of children, as well as the law on adultery among others is presently sub judice before the Supreme Court, they have been discussed in the paper.

The Law Commission feels that a Uniform Civil Code (UCC) is “neither necessary nor desirable at this stage.

Secularism cannot contradict the plurality prevalent in the country. Besides, cultural diversity cannot be compromised to the extent that our urge for uniformity itself becomes a reason for the threat to the territorial integrity of the nation.

The term ‘secularism’ has meaning only if it assures the expression of any form of difference. This diversity, both religious and regional, should not get subsumed under the louder voice of the majority. At the same time, discriminatory practices within a religion should not hide behind the cloak of that faith to gain legitimacy.

The way forward may not be UCC, but the codification of all personal laws so that prejudices and stereotypes in every one of them would come to light and can be tested on the anvil of fundamental rights of the Constitution. By codification of different personal laws, one can arrive at certain universal principles that prioritize equity rather than the imposition of a Uniform Code, which would discourage many from using the law altogether, given that matters of marriage and divorce can also be settled extra-judicially.

The difference does not always imply discrimination in a robust democracy. A unified nation does not necessarily need to have “uniformity.” Efforts have to be made to reconcile our diversity with universal and indisputable arguments on human rights.

Uniform Civil Code is a proposal to have a generic set of governing laws for every citizen without taking into consideration the religion.

Article 44 of the Constitution says that there should be a Uniform Civil Code. According to this article, “The State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”. Since the Directive Principles are only guidelines, it is not mandatory to use them.

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