Is It Time to Reform the Indian Family Law?
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This Blog is written by Harshit Rai from Amity Law School, Lucknow. Edited by Ravikiran Shukre.
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INTRODUCTION:
An omnibus legislation during a country as diverse as ours with assorted customs and social mores is neither necessary nor desirable but there’s got to ensure some basic rights across the board. The State continues to – and it must – make endeavours towards enabling the rights enshrined within the Constitution through conversations with the stakeholders. Laws associated with the family – marriage, divorce, adultery, inheritance etc. – are steeped in traditions. The conventions vary significantly in every region, race and religion. Some of these practices have become outdated and clash with newer principles of the day. Codes concerning such issues as child marriage, triple talaq, Hindu Undivided Family (HUF) law, identity of Parsi women married outside the community, status of women in live-in relationships and their children stick out as painful sores and wish modification in consonance with the changing times.
Directed towards addressing social injustices, the Law Commission of India, in its latest consultation paper on the topic has wisely ruled out a consistent civil code. An omnibus law could infringe upon a person’s right to freedom of faith. Instead, it rightly pushes for reforms within the prickly points of private laws of Muslims, Hindus, Christians individually and their codification to bring them in line with fundamental rights. At an equivalent time, customs that grate against the grain of universally acknowledged human rights must be done away with altogether religious denominations, especially mores that discriminate against women or foster gender inequality.
Efforts that reconcile differences with unified laws on indisputable matters are welcome. To ensure that secularism is in tandem with plurality, the law panel has opened the bottom for a couple of lively debate. One, how about scrapping the coparcenary clause within the Hindu Undivided Family (HUF)? Or, why not same age (18) for consent for marriage for both men and women? Is it right time for children born out of live-in bonds were legitimised? The communities and their leaders would have best to think about them with an open mind instead of enforce regressive dogmas.
HISTORY:
Vedic and Post-Vedic Developments in Family Matters:
Feminine glory was at its peak during the Vedic period. The woman enjoyed a position of honour, respect and equality during this period. She was entitled to participate altogether the religious ceremonies alongside her husband, and certain religious ceremonies performed by the husband within the absence of his wife were not considered as valid. In the post Vedic period, the respectable position enjoyed by the women in the family began to decline and the position of women in the matrimonial home was not satisfactory. During Smriti period the status of women was adversely affected by the influence of later Vedic literature through religious injunctions. The Mughal period restricted the freedom of movement of women through Purdah system. Polygamy, Sati, Child marriage, female foeticide, devadasi system and domestic violence was very common.
Period of Social Transformation (Pre-Independent and Post Independent Period):
During British reign, the condition of girls started improving. Remarriage of Hindu widows was legalised by Hindu Widow Remarriage Act, 1856. The Child Marriage Restraint Act was passed in 1929 which prohibited child marriage. Hindu Women Right to property Act gave certain rights to widow to inherit husband’s property as limited owner. Dissolution of Muslim Marriage Act,1939 gave Muslim wife the right to divorce her husband which was denied to her earlier. Such legislations curbed social evils to a larger extent to improve the status of women.
SIGNIFICANCE OF THIS DEVELOPMENT:
By virtue of being enacted as laws, personal law can’t be codified during a way that contradicts the Constitution. For instance, codification of discriminatory custom no matter how commonly acceptable they’ll be, can cause crystallisation of prejudices or stereotypes. At an equivalent 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. This way some of the differences within personal laws which are meaningful are often preserved and inequality are often weeded bent the best extent possible without absolute uniformity. For long there has been a battle of sorts between freedom of faith and ones right to equality. While the more fundamentalist forces within the society have historically demanded an absolute right to freedom of faith whereby religious customs can’t be tested against even constitutional provisions, on the other hand are the advocates of the proper to equality who suggest that the law should be blind to cultural difference when it involves matters of human rights. Both these positions aren’t exclusive of one another and one has got to reconcile both freedom of faith and right to equality so as to justly administer the law.
Both these rights are valuable and bound to every citizen of the country and to necessitate women to settle on between one or the opposite is an unfair choice. Therefore, women must be guaranteed their freedom of religion with none compromise on their right to equality. At this stage these rights are often reconciled by making piecemeal changes to laws wherever necessary. The fact that secular laws like the Special Marriage Act, 1954 also still suffer from lacunae suggests that even codified or religion-neutral laws offer no straightforward guarantee of justice. At an equivalent time, while freedom of faith and right to not just practice but also propagate religion must be strongly protected during a secular democracy, it’s important to bear in mind that variety of social evils take refuge as religious customs these could also be evils like sati, slavery, devadasi, dowry, triple talaq, child marriage or any other. For these practices don’t conform with basic tenets of human rights are nor are they essential to religion.
While even being essential to religion shouldn’t be a reason for a practice to continue if it’s discriminatory, our consultations with women’s groups suggested that religious identity is important to women, and private laws alongside language, culture etc. often constitute a neighbourhood of this identity and as an expression of freedom of religion. 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 might be erroneous to presume that each one citizen uniformly enjoy 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’s no equality in treating unequal’s as equals. There are various laws, social action policies and schemes during this country to bring all citizens to share footing on significant matters. In family law too, different laws were codified over time for various communities to slowly align them with constitutional values. By reforming the family law, we can acknowledge, address and affix, all aforementioned issues. Hence, it is significant that these reforms are brought in action and resolve all such issues of the society.
CASE LAWS:
Hirachand Srinivas Managaonkar v. Sunanda [1]:
The Supreme Court observed that living in adultery on a part of husband may be a ‘continuing matrimonial offence’ and therefore the said offence isn’t exhausted even on passing of decree of legal separation, because the same merely suspends certain obligation of spouse in reference to their marriage and doesn’t snap matrimonial tie.
Joseph Shine v. Union of India [2]:
The Supreme Court, while referring the matter to Constitutional Bench, observed that “The provision (Section 497) really creates a dent in the individual independent identity of a woman when the emphasis is laid on the convenience or consent of the husband. This tantamount to subordination of a lady where the Constitution confers (women) equal status”
Section 497 of IPC: Adultery:
Whoever has sexual intercourse with a private who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual activity not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may reach five years, or with fine, or with both. Wife shall not be punishable as an abettor in such cases.
Independent Thought v. Union of India [3]:
The Supreme Court read down Exception 2 to Section 375 of IPC that allowed the husband of a woman child — between fifteen and eighteen years aged the proper to have intercourse with her. The Supreme Court dealt specifically with the exception handling married girls aged between fifteen to eighteen. The Court rightly held that a toddler remains a toddler no matter whether she is married or unmarried and thus intercourse with a minor would be rape no matter her marital status.
RECENT DEVELOPMENTS REGARDING THE UNIFORM CIVIL CODE:
It is a supposed assumption that after the banning of triple talaq, Modi government’s agenda could be bringing Uniform Civil Code. During the month of August 2018, the Law commission submitted a report “Reform of Family Law” in the month of August 2018, talking about the diversity of Indian culture and how the weaker sections of the society must not be “dis-privileged” in the process.
CONCLUSION:
Despite constitutional safeguards, statutory provisions and so many judicial decisions for gender justice, there is not much change in social attitudes and institutions significantly. This reflects those laws written in black and white are not enough. Awakening of the collective consciousness is the need of the day. No doubt Indian Judiciary is playing a significant role to uphold the dignity and worth of Indian women. It has expanded the horizons of human rights jurisprudence. This responsibility has to be shared by the State, community organizations, legislators who frame the laws and the judiciary which interprets the Constitution to make effective legal reform in the field of gender.
We have covered long distance but still have to cover more to promote socio economic justice in Toto by giving woman equal rights to that of men. We can fill up the gaps to bring desired transformation. by educating the society, legal community and the by organizing legal-aid camps at the grass-root level. There is need to constitute the Forums at different Levels in Society to implement the laws effectively and lastly one must give up Policy of Religious Appeasement.
REFERENCES:
(1) [AIR (2001) SC 1285]
(2) [(2018) 2 SCC 189]
(3) [AIR (2017) SC 4904]
(4) Consultation Paper on Reform of Family Law, Law Commission of India
(5) 44thamendment references and understanding the changes that it brought
https://byjus.com/free-ias-prep/44th-amendment-act/
(6) Article 25 & 26 of the Indian constitution – P.M. Bakshi (Constitution of India)
(7) Pros and cons of Uniform civil code
https://www.clearias.com/uniform-civil-code-ucc/
(8) Uniform civil code in a nutshell