BackLaw panel tables consultation paper on reform of family law
Paper discusses introduction of new grounds for 'no fault' divorce, changes to provisions on alimony, and inequality in age of consent for marriage
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New Delhi: In the absence of a consensus on a uniform civil code, the best way forward for India may be to preserve the diversity of personal laws while ensuring they do not contradict the fundamental rights, the Law Commission said on Friday on the conclusion of its term. The Law Commission’s recommendation came in a 185-page consultation paper on ‘reform of family law’ released on Friday.
“The ministry of law and justice made a reference to the Law Commission of India dated 17 June 2016 to examine matters in relation to the uniform civil code. The issue of uniform civil code is vast, and its potential repercussions, untested in India," the consultation paper said.
It said the diversity of Indian culture can and should be celebrated, but specific groups, or weaker sections of society must not be placed at a disadvantage in the process.
“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," it said.
It pointed out that the prevailing personal laws place women at a disadvantage because of discrimination. Describing dowry, triple talaq and child marriage as ‘social evils’, the commission said that several of these have taken refuge as religious customs. “To seek their protection under law as religion would be a grave folly. These practices do not conform with the basic tenets of human rights nor are they essential to religion. Even being essential to religion should not be a reason for a practice to continue if it is discriminatory," the consultation paper said.
The commission undertook extensive research, including several consultations over the course of two years. It received more than 75,378 responses suggesting various ways in which reforms could be executed. As the commission’s term came to an end on Friday, it preferred a consultation paper as it had little time to bring out a comprehensive report, according to the Press Trust of India. The report deals with four key issues: marriage and divorce, custody and guardianship, adoption and maintenance, and succession and inheritance.
“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," the report said. “The commission has endeavoured to best protect and preserve diversity and plurality that constitute the cultural and social fabric of the nation."
The commission said that when there is no consensus on a uniform civil code, it would be best “to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights". The paper called for codification of all personal laws by bringing in amendments.
Any such move should be preceded by extensive debate to ensure that such codification does not contradict the basic tenets of the Constitution. The commission said that legislatures should first consider guaranteeing equality within communities between men and women instead of equality between communities.
The consultation paper on triple talaq, which based its observations on judicial orders and other reports, said the practice neither has the sanction of religious edicts nor of fundamental rights.
“The issue of family law reform does not need to be approached as a policy that is against the religious sensibilities of individuals but simply as one promoting harmony between religion and constitutionalism, in a way that no citizen is left disadvantaged on account of their religion and at the same time every citizen’s right to freedom of religion is equally protected," it said.
The right to practice and propagate a religion should be protected in a secular democracy, but one has to keep in mind that several social evils take refuge as “religious customs", the consultation paper says. It added that the right to equality cannot be treated as an absolute right either.
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