Uniform Civil Code neither necessary nor desirable at this stage, Law Commission of IndiaSeptember 1 2018
The Law Commission of India has opined that a Uniform Civil Code (UCC) is not required to reconcile conflicts in personal/family laws with the Indian Constitution.
In a consultation paper on Reform of Family Law, the Commission has observed,
“Resolution of this conflict does not mean abolition of difference. This Commission has therefore 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.”
Therefore, the Commission has suggested amendments to existing family laws to tackle discrimination and inequality in personal laws, rather than do away with differences between them altogether. It has also suggested codification of certain aspects of personal laws to limit the ambiguity in interpretation and application of these personal laws.
Deliberate emphasis has been placed on moving towards laws that are gender neutral and which are less discriminatory towards illegitimate children.
The Commission has reserved its recommendations in certain relevant areas such as the patriarchal undertones of adultery law, Muslim polygamy and certain aspects of Parsi divorce, given that they are currently sub judice before the Supreme Court.
Notable recommendations made include the following.
Legal Amendments proposed for Family Laws, regardless of Religion
Compulsory registration of marriages: This can be introduced by an amendment to the Registration of Births and Deaths Act. This is line with the Commission’s earlier recommendation in its 270th Report as well as the Compulsory Registration of Marriages‘ Bill (2017)
A uniform Age of Consent for Marriage: The legal age for marriage for men and women alike should be the age of majority as per the Indian Majority Act, 1875, i.e. 18 years. At present, the law provides that a woman can marry on attaining 18 years, whereas a man has to attain 21 years. Apart from being in conflict with the Indian Majority Act, the Commission noted that such a law simply contributes to the stereotype that wives must be younger than their husbands.
Irretrievable Breakdown of Marriage as a ground for Divorce: It has been recommended that the irretrievable breakdown of a marriage be recognised as a valid ground for divorce, where there is no scope for reconciliation between the couple. This would also help curb false allegations of cruelty etc. made against a spouse to hasten the process of divorce.
Community of Property upon Marriage and Divorce: Both spouses should be equally entitled to property acquired after marriage. This is not to mean that there is an absolute equal split of property at the end of the relationship, and Court discretion in these matters should be retained. However, the Commission has recommended that the availability of a no-fault divorce must accompany such community of self-acquired property.
Laws should be made disabled-friendly: Inter alia, the Commission has recommended that leprosy be deleted as a ground for divorce. To move towards a more inclusive society, the Commission has also recommended that appropriate amendment be made so that persons with illnesses that can be cured or controlled are not barred from marrying. Such diseases should also be excluded from being grounds for divorce.
“Colonial inheritance” of Restitution of Conjugal Rights should be abolished: Inter alia, it was noted that this provision was only being used to defeat maintenance claims filed by wives and served little purpose otherwise.
Bigamy upon Conversion: Such second marriages enabled by conversion should be made void. However, it is recommended that the children born out of such union not be treated as illegitimate.
Welfare of Illegitimate children: A law should be introduced to address the issue of legitimisation of children born of live-in relationships that fail to reach the threshold of a deemed marriage. Laws should also be amended to allow illegitimate children to be entitled to inherit the self-acquired property of their parents.
On husbands as guardians: Section 19 (a) of the Guardians and Wards Act, 1890 should be deleted. This provision could allow even a minor husband to be appointed as the guardian for his wife, apart from otherwise treating women as property. Section 21 should also be amended so that minor husbands are not tasked as guardians for their wives. Instead, both parents should be equally responsible for minors.
Adoption law under the Juvenile Justice (Care and Protection of Children) Act, 2015 should be amended so that individuals of all gender identities can adopt under the Act, and further so that intersex children are not excluded from its purview.
Adoption of female child by male adult should be allowed: The Commission has suggested allowing adoption to a single-parents, irrespective of gender/gender identity of the child as well as the parent. Presently, the law does not permit a male adult to adopt a female child.
Piecemeal amendments may be made in all personal laws to ensure the uniform grant of maintenance to children.
Succession must be based on proximity to the deceased rather than preference to male line heirs.
Deletion of thirty-day notice period under the Special Marriage Act, 1954: This time period is often misused by disapproving kin to discourage the marriage. As an alternative to deleting such provisions, it is suggested that adequate protections for the couple be introduced against disapproving kin seeking to stop their inter-caste/inter-religious marriage.
Notable Recommendations for Religion Specific Laws
- Abolition of Coparcenary at the Central level: The Commission observed that the even after women were recognised as coparceners, the law continues to be replete with inherent lacunae. To address the same, the right in a property by birth should be extinguished by opting for ‘tenancy-in-common’ instead of ‘joint tenancy’.
- Abolition of the tax-exempted entity that is Hindu Undivided Family (HUF): The Commission noted that it is time that the HUF be abolished given that it is not congruent with corporate governance, nor is it conducive for the tax regime.
- Both parents should be recognised equally when it comes to granting guardianship under the Hindu Minority and Guardianship Act, 1956. The Act also endorses the idea that women should be under the guardianship of a man her entire life, whether under her father or her husband. Appropriate amendment should be introduced to do away with such a notion.
- Testamentary and Inheritance laws should be made amended so that married men and women stand on equal footing in such matters. Currently, the husband’s relatives have prior claim over a married woman’s intestate property, compared to her parents and siblings. On the other hand, the marital status of a man has no such effect in the scheme of intestate succession to his property.
- The Commission also noted that the idea that Hindu children would lose all rights to claim maintenance from anybody appears contrary to the Caste Disabilities Removal Act, 1850.
- Codified Inheritance Law: A complete code, i.e., Muslim Code of Inheritance and Succession, applicable to both the Sunnis and the Shias may be formulated for the sake of clarity. This would entail abolition of the Muslim Personal Law (Shariat) Application Act, 1937
- Adultery should be introduced as a ground for divorce through an appropriate amendment to the Dissolution of Muslim Marriage Act, 1939.
- The Nikahnama (marriage contract) itself should make it clear that polygamy is a criminal offence. However, noting that the matter is sub judice before Supreme Court, the Commission reserved its recommendation on this aspect.
Divorce: The period for confirmation of a decree of divorce is significantly longer than for the couples of other religions. Before a divorce for a Christian couple is granted, a two-year separation period has to be completed.
Whereas the Supreme Court is yet to decide on a writ petition challenging it, the Commission has suggested that this issue can be rectified by bringing it in line with the Special Marriage Act, 1954.
Ostracisation on Marriage with outsider: Under the present system, Parsi women who marry outside the community are expelled from the community. Consequently, they also forfeit their inheritance rights. Taking a stance against such practices, the Commission has stated,
“The very idea that upon marriage a woman must discard her religious or social identity and acquire only that of her husband goes against the idea of equal partnership in marriage. Not only should women have a right to follow their customs, rites and rituals, but also they should be under no obligation to give up their maternal or paternal surname.”
Divorce: The Parsi procedure for divorce currently involves a jury system, which has otherwise been abolished in India. The Commission has recommended that the procedure be simplified.
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