Underlining that the Uniform Civil Code is “neither necessary nor desirable at this stage”, the Law Commission of India has argued for reform of family laws of every religion through amendments and codification of certain aspects so as to make it gender-just.
In its ‘Consultation Paper on Family Law Reforms’ released Friday, the Law Commission has taken a stand in favour of “equality ‘within communities’ between men and women” (personal law reform), “rather than ‘equality between’ communities” (UCC).
The consultation paper states that the Law Commission has “dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy”.
The Commission goes on to emphasise that celebration of the diversity of Indian culture must not disprivilege specific groups and “women must be guaranteed their freedom of faith without any compromise on their right to equality” as it would be unfair to make women choose between one or the other.
Citing sati, devadasi, triple talaq and child marriage as examples of ‘social evils’ under the garb of religious customs, the Commission has observed that these “practices do not conform with basic tenets of human rights and nor are they essential to religion”. The paper goes on to recommend a series of reforms in both personal laws of all religions and secular laws that put women and children at disadvantage.
With regards to sections of the Indian Succession Act, 1925 that deal with intestate succession among Parsis in India, the Commission has held that a Parsi woman should be allowed to retain her identity even if she marries outside the community and that their children should be allowed to inherit if they choose Zoroastrianism, and not their father’s religion.
One of the most significant recommendation with regards to the Hindu personal law is the abolition of the Hindu Undivided Family which, the paper notes, has been used only for tax evasion. Towards this end, the papers states that coparcenary should be abolished as it would mean that the HUF too would “inevitably collapse”. The Commission notes: “It is high time it is understood that justifying this institution on the ground of deep-rooted sentiments at the cost of the country’s revenues may not be judicious.”
Among other reforms suggested in Hindu laws are doing away with the provision of restitution of conjugal rights to force wives to cohabit, bringing in a new legislation to address the issue of legitimisation of children born of live-in relationships and their right to inherit.
With regards to the uncodified Muslim personal law, the paper has asked for a reform in inheritance law through codification which would necessitate abolition of the Muslim Personal Law (Shariat) Application Act, 1937. It has recommended for a ‘Muslim Code of Inheritance and Succession’, applicable to both Sunnis and the Shias, so that succession and inheritance be based on ‘proximity to the deceased rather than preference to male agnates heirs’. The paper states that a Muslim widow, even if childless, should inherit property of the deceased as a Class I heir. Moreover, it holds that the Dissolution of Muslim Marriage Act, 1939, requires amendment to explicitly include adultery as a ground for divorce for both spouses as currently it is recognised only if it is committed with “women of evil repute or leads an infamous life”.
Since polygamy, nikah halala, adultery law are in the Supreme Court, the Law Commission has discussed reforms but not made recommendations. “Although polygamy is permitted within Islam, it is a rare practice among Indian Muslims, on the other hand it is frequently misused by persons of other religions who convert as Muslims solely for the purpose of solemnising another marriage rather than Muslim themselves,” it notes. It does, however, suggests that nikahnama itself should make it clear that polygamy is a criminal offence, a position that is not based on a moral stance on monogamy but on the fact that it has been used as an exclusive privilege of men.
Despite amendments to the Christian marriage and divorce laws in 2001, the paper points out that Parliament preserved the two-year separation period clause as the Catholic community in particular “had not been historically in favour of divorce”. Based on arguments by Christian women that this is significantly longer than any other religion, the Commission has asked it to be brought in line with Special Marriages Act, 1954. The SMA itself has been faulted by the Commission for its 30-day notice period after the registration of marriage which, it states, “offers an opportunity to kin of the couple to discourage an inter-caste or an inter-religion marriage” at a time when signing nikahnama confers the status of husband-wife immediately as does the registration under the Hindu Marriage Act.
Some of the other significant recommendations of the Commission include compulsory marriage registration, rectifying the inequality in age of consent for marriage (18 for girls 21 for boys) as it ‘simply contributes to the stereotype that wives must be younger than their husbands’, allowing transgender persons to adopt, introduction of a new grounds for ‘no fault’ divorce, taking ‘best interest of child’ as the basis for matters of custody, and defining the rights of persons with disabilities within marriage