Family Law Reform Moves Away from a Uniform Civil Code — But Toward Gender Equality

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Sep 18, 2018

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The much awaited family law recommendations of the 21st Law Commission of India were uploaded on its website on 31 August, 2018, just a few hours before its term ended; they went almost unnoticed by most people. This is because, in direct contrast to the hype that was created when the Law Ministry had made a reference to the law commission in June 2016 to examine the feasibility of introducing a Uniform Civil Code, the recommendations let down all those who were anxiously awaiting a green signal from the law commission for the government to fulfill its long term agenda of  enacting a Uniform Civil Code, primarily as a stick to beat Muslims with.

Rather ironically, the “Consultation Paper on Family Law Reforms” has come out with a clear statement in support of legal pluralism: “A Uniform Civil Code is neither feasible nor desirable for a pluralistic nation such as India,” the Law Commission of India stated and added that gender justice must be woven into the personal laws of each community.

The Law Commission of India has clearly brought out the fact that, while all personal laws are discriminatory, they do not discriminate against women in the same way. Hence, each personal law has to be carefully examined to weed out the discriminatory aspects.

“Mere existence of difference does not imply discrimination, but is indicative of a robust democracy,” the law commission commented in defense of multiculturalism, and added that most countries were moving towards recognition of difference rather than a flat uniformity between culturally diverse people as it causes more injustice to the vulnerable sections.

The paper recommended a series of reforms in personal laws of all religions and the secular laws that place women and children at a disadvantage. It refrained from making any recommendations on triple talaq or Muslim bigamy and the constitutional validity of adultery under Section 497 of the Indian Penal Code, since these are before the Supreme Court or Parliament. Hence, the most significant and far-reaching recommendation of the law commission’s paper is with regard to the Succession Laws of Hindus.

It recommended the abolition of the institution of  the Hindu Undivided Family (HUF) property as it is used only for tax evasion. “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,” the law commission held.

Among other reforms suggested in Hindu laws are deletion of the provision of restitution of conjugal rights, which is used to force an unwilling wife to surrender to her husband’s demand of enforcing conjugality. The other recommendations are to bring in a new legislation to address the issue of legitimisation of children born out of live-in relationships and to secure their right of inheritance.

However, with the general elections looming large in the horizon, it is likely this report will just be put aside and ignored, as is the fate of most law commission reports.

Concern about discrimination against women regarding inheritance in all personal laws seems to dominate the report. It has suggested codification of Muslim law of inheritance and succession so that succession will be based on “proximity to the deceased rather than preference to male agnates [heirs].” Further, a  Muslim widow, even if childless, should be given rights to inherit the property of her deceased husband as a Class I heir.

The report also safeguards the rights of Parsi women who marry men from outside their religion. The commission recommended that a Parsi woman should be allowed to retain her identity even when she marries outside the community and that their children should be allowed to inherit from her mother’s relatives if they choose Zoroastrianism.

Another aspect of property which figures in the report is division of matrimonial property at the time of divorce. While suggesting that “no fault divorce” must be introduced in all personal laws, the law commission has recommended that it should accompany the provision of division of all property acquired after marriage.

Another important recommendation about rights within marriage is defining the rights of persons with disabilities.

The commission has made an interesting comment regarding Muslim polygamy: “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 Muslims themselves,” it notes. “Nikahnama (the marriage contract) should make it clear that polygamy is a criminal offence,” it holds, and clarifies that it is not based on a moral stance but on the fact that it has been used as an exclusive privilege granted to men.

The report recommends an amendment to the Dissolution of Muslim Marriage Act, 1939, to explicitly include adultery as a ground for divorce. Currently the term used is archaic “women of evil repute,” which needs to be changed to a simple wording: adultery.

It has also suggested the abolition of the 30-day notice period for registering a marriage under the Special Marriage Act as it provides “an opportunity to kin of the couple to discourage an inter-caste or an inter-religion marriage.” Since the Muslim marriage comes into effect immediately after signing the nikahnama, and Hindu marriage soon after the rituals are performed, the law commission recommended that the waiting period should be done away with.

It also suggested that the period of separation before filing for a mutual consent divorce for Christians should be reduced to one year, from the current two years, as this creates hardship for Christians desiring to end the marriage and discriminates against them.

Another provision to weave in gender equality within marriage laws has been to bring down the age of marriage for boys to 18, to bring parity with the age of marriage for girls since it validates the stereotype that wives must be younger than their husbands.

Finally, the law commission has also recommended that transgender people should be permitted to adopt.

With these recommendations, the Family Law Reform project has moved beyond the rhetoric of a Uniform Civil Code. The Law Commission of India has clearly brought out the fact that, while all personal laws are discriminatory, they do not discriminate against women in the same way. Hence, each personal law has to be carefully examined to weed out the discriminatory aspects.

This is easier said than done. The government is not bound by these recommendations. Even so, since the reference to examine the feasibility of introducing a Uniform Civil Code was made with much fanfare, it remains to be seen whether the government will rock the boat and abolish the institution of HUF property and bring in a new legislation to secure the rights of Muslim widows.  If HUF is abolished, it may affect the Hindu vote base of the BJP where traders and farmers are already reeling under the setback caused by demonetisation and introduction of GST. With the general elections looming large in the horizon, it is likely this report will just be put aside and ignored, as is the fate of most law commission reports.

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Written By Flavia Agnes

Flavia Agnes is a women’s rights lawyer based in Mumbai.

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