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Government of India Law Commission of India Consultation Paper On Bar & Bench (www.barandbench.com) Government of India Law Commission of India Consultation Paper on Reform of Family Law 31 August 2018 Bar & Bench (www.barandbench.com) Acknowledgements The Ministry of Law and Justice made a reference to the Law Commission of India dated 17th June, 2016 to ‗examine matters in relation to uniform civil code‘. The issue of uniform civil code is vast, and its potential repercussions, untested in India. Therefore, after detailed research and a number of consultations held over the course of two years, the Commission is presenting its consultation paper on reform of family laws in India. The Commission thanks all individuals and organisations who became a part of this process. It thanks groups and non- government organisations, that organised consultations and invited the Chairman of the Commission to academic institutions as well as other seminars for discussions on family law. The Commission also would like to place on record its appreciation for individuals who gave their valuable time to come for meetings on various issues relating to family law. The Commission expresses its gratitude towards all women‘s organisations, religious organisations, other civil society initiatives and experts in field of family law who provided the commission with oral and written submissions concerning various aspects of family law. The Commission places on record its special thanks to Dr Saumya Saxena, Ms. Preeti Badola, Ms. Oshin Belove, Mr. Setu Gupta, and Ms. Anumeha Mishra for their research and assistance in preparation of this Consultation paper. *** ii Bar & Bench (www.barandbench.com) Consultation Paper on Reform of Family Law Table of Contents Sl. No. Chapter Page 1 Introduction 1 2 Marriage and Divorce 17 3 Custody and Guardianship 60 4 Adoption and Maintenance 89 5 Succession and Inheritance 123 iii Bar & Bench (www.barandbench.com) 1. INTRODUCTION: 1.1. In June 2016 through a reference by the Government of India, the Law Commission was entrusted with the task of addressing the issues concerning a uniform civil code. The Law Commission of India has taken this opportunity to address the ambiguity that has long surrounded the questions of personal law and uniform civil code in India. This consultation paper has been an endeavour to understand, acknowledge and finally suggest potential legislative actions which would address discriminatory provisions under all family laws. In doing so, the Commission has endeavoured to best protect and preserve diversity and plurality that constitute the cultural and social fabric of the nation. 1.2. Various aspect of prevailing personal laws disprivilege women. This Commission is of the view that it is discrimination and not difference which lies at the root of inequality. In order to address this inequality the commission has suggested a range of amendments to existing family laws and also suggested codification of certain aspects of personal laws so as to limit the ambiguity in interpretation and application of these personal laws. 1.3. Whether or not ‗personal law‘ are laws under Article 13 of the Constitution of India or if indeed they are protected under Articles 25- 28, has been disputed in a range of cases the most notable being Narasu Appa Mali.1 In the absence of any consensus on a uniform civil code the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India. In order to achieve this, it is desirable that all personal laws relating to matters of family must first be 1 State of Bombay v.Narasu Appa Mali AIR 1952 Bom 84. 1 Bar & Bench (www.barandbench.com) codified to the greatest extent possible, and the inequalities that have crept into codified law, these should be remedied by amendment. 1.4. By virtue of being ‗enacted‘ as laws, personal law cannot be codified in a way that contradicts the Constitution. For instance, codification of discriminatory custom regardless of how commonly acceptable they may be, can lead to crystallisation of prejudices or stereotypes. Therefore, codification of any law requires a rigorous debate and the Commission has taken only the first step in this direction. At the same time, the very act of codifying ‗separate‘ personal laws could itself be challenged as an exercise against Article 14 of the Constitution. Therefore, it is urged that the legislature should first consider guaranteeing equality ‗within communities‘ between men and women, rather than ‗equality between‘ communities.2 This way some of the differences within personal laws which are meaningful can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity. 1.5. For long there has been a battle of sorts between freedom of religion and one‘s right to equality. While the more fundamentalist forces within the society have historically demanded an absolute right to freedom of religion whereby religious customs cannot be tested against even constitutional provisions, on the other hand are the advocates of the right to equality who suggest that the law should be blind to cultural difference when it comes to matters of human rights. Both these positions are not exclusive of one another and one has to reconcile both freedom of religion and right to equality in order to justly administer the law. Both these rights are valuable and guaranteed to every citizen of the country and to necessitate women to choose between one or the other is an unfair choice. Therefore, women must be guaranteed their freedom of faith without any compromise on 2 See also, Menon, Nivedita. State, community and the debate on the uniform civil code in India. 2000. 2 Bar & Bench (www.barandbench.com) their right to equality. At this stage these rights can be reconciled by making piecemeal changes to laws wherever necessary. The fact that secular laws such as the Special Marriage Act, 1954 also continue to suffer from lacunae suggests that even codified or religion-neutral laws offer no straightforward guarantee of justice. 1.6. At the same time, while freedom of religion and right to not just practice but also propagate religion must be strongly protected in a secular democracy, it is important to bear in mind that a number of social evils take refuge as ‗religious customs‘ these may be evils such as sati, slavery, devdasi, dowry, triple talaq, child marriage or any other. To seek their protection under law as ‗religion‘ would be a grave folly. For these practices do not conform with basic tenets of human rights are nor are they essential to religion. While even being essential to religion should not be a reason for a practice to continue if it is discriminatory, our consultations with women‘s groups suggested that religious identity is important to women, and personal laws along with language, culture etc often constitute a part of this identity and as an expression of ‗freedom of religion‘. 1.7. Right to equality on the other hand can also not be treated as an absolute right. In a country like ours where social inequalities plague our society and economic inequality is insurmountable it would be erroneous to presume that all citizens uniformly benefit from the right to ‗equality‘. Therefore ‗equity‘ and not mere equality would mean that preferential rights and protections are maintained for vulnerable or historically subordinated sections of the society, for there is no equality in treating unequals as equals. There are various laws, affirmative action policies and schemes in this country to bring all citizens to share common ground on significant matters. In family law too, different laws were codified over time for various communities to slowly align them with constitutional values. The task began at the time of independence itself. 3 Bar & Bench (www.barandbench.com) 1.8. The category of personal law may well have evolved in colonial India, but post-independence this category was strengthened, reconstituted and reinforced. One of the foremost social legislations that were introduced in independent India was, in fact, the amendments to Hindu law. These amendments generated enormous protests in many parts of India and most notable and vociferous opposition came from the Hindu Mahasabha.3 Despite sustained protests the Hindu Law Committee continued to contemplate reforms, under the stewardship of Nehru and Ambedkar. 1.9. Ambedkar‘s position in the Constituent Assembly debates towards a uniform civil code was that such a code would be desirable but for the moment would remain voluntary. He recommended: It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary […] so that the fear which my friends have expressed here will be altogether nullified.4[..] This is not a novel method. It was adopted in the Shariat Act of 1937 when it was applied to territories other than the North-West Frontier Province. The law said that here is a Shariat law which should be applied to Mussalmans who wanted that he should be bound by the Shariat Act should go to an officer of the state, make a declaration that he is willing to be bound by it, and after he has made that declaration the law will bind him and his successors.‘5 3 Hindu Mahasabha Publication, The Hindu Outlook from 1941-1956. Managing editor Indra Prakash Editor VG Deskpande: ‗Hindu Code Bill Disrupts Family System and Stable Society‘ 29 November 1948, ‗Hindus ―Distressed and Disappointed‖‘ Mahasabha Gl.
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