The law Commission on Friday pitched for preserving the diversity of the personal laws but by ensuring that they do not violate the fundamental rights. The Commission stressed upon removing discrimination against women within communities rather than looking for equality between communities in terms of family law.
The Commission suggested a range of amendments to existing family laws and codification of certain aspects of personal laws so as to limit the ambiguity in interpretation and application of these personal laws.
The law Commission's view is politically significant since the Modi Government's emphasis on a uniform civil code, especially in the backdrop of the call for reform in Muslim personal laws and the Supreme Court's outlawing of “triple talaq”, have been viewed by its critics as a way to impose a majoritarian viewpoint over everyone. The law Ministry had earlier asked the law Commission panel to "examine matters in relation to the uniform civil code".
The Commission's chairman justice BS Chauhan, whose tenure ended on Friday, released a “Consultation Paper on Reform of Family law”. Instead of a full-fledged report on a uniform civil code, the law panel preferred a consultation paper as it had little time at hand to bring out a comprehensive report. Now, it will be up to the 22nd law Commission to bring out a final report on the controversial issue which has generated a heated debate in the recent past.
"In the absence of any consensus on a UCC, 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," the Commission said. It also stated that 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.
The Commission also pointed out that in order to achieve this, it is desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law should be remedied by amendment.
While the UCC has been strongly backed by the ruling BJP as a way to ensure gender equality across religions, the Commission stated 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 can be preserved and inequality can be weeded out to the greatest extent possible without absolute uniformity," it said.
The Commission, however, clarified, that certain issues such as polygamy, nikah halala, settlement of a Parsi wife's property for benefit of children, and the law on adultery are presently sub judice before the Supreme Court, hence, comprehensive changes on some of these have not been suggested at this stage.
Under the Hindu law, the paper discusses problems with provisions such as restitution of conjugal rights, and suggests the inclusion of concepts such as 'community of property' of a married couple, abolition of coparcenary and rights of illegitimate children.
Meanwhile, with regard to Muslim personal laws, which attracted maximum public interest in the exercise, the law Commission said that resorting to unilateral divorce should be penalised as per the provisions of the Protection of Women from Domestic Violence Act, 2005, and anti-cruelty provisions of IPC, 1860, especially Section 498. On the practice of Nikah Halala, the law Commission said bringing an end to triple talaq should automatically put a curb on it. Under the Muslim law, it discusses the reform in inheritance law through codification of Muslim law on inheritance and that it gender just.
In a significant observation, the Commission said that although polygamy is permitted within Islam, it is a rare practice among Indian Muslims, and 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 Muslim themselves. The Dissolution of Muslim Marriage Act, 1939, also requires amendment to explicitly include adultery as a ground for divorce for both spouses. Bigamy is dealt with separately later in this chapter.
Under Section 32(d) of the Parsi Marriage and Divorce Act, 1936 a person can file an application of divorce if the defendant, after marriage has committed the offence of adultery, fornication bigamy, rape or an unnatural offence. However, this ground of divorce is available only when the other spouse files the application within two years of discovery of the fact.
Although the sixth schedule provides for exemptions to states in the North East and tribal areas, the Commission suggests that efforts of women's organisations in these areas be acknowledged and relied upon in this regard to suggest ways in which family law reform could be aided by the State even when direct intervention may not be possible.