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The Consultation Paper On Family Reforms In India

The consultation paper on family reforms in India, suggested some budding amendments and raw enactments with respect to all family laws be it secular or personal, it suggested various provisions which can be added to the current family laws. Broadly, speaking, it suggested changes ranging from alimony and maintenance, rights of differently abled individuals with respect to their marriage, bigamy after conversion, mandatory registration of marriage, thirty days' time period for registering the marriage under Special Marriage Act. And inequality with respect to age of consent among boys and girls formed a major part. It even discussed to introduce various fresh grounds for the no fault theory of divorce.

Along with this, the paper also suggested that the Juvenile Justice Act, should be expanded so that so can be followed by every individual or couples of every community during adoption, that is the suggestion was given to make a secular law with respect to adoption, along with this, suggestion of amendments in various guidelines for adoption was also made.

It is involved the inclusion of women of North eastern and tribal areas in a way that their efforts should be appreciated and acknowledged, and they should be allowed to suggest the ways in which the reforms could be bought in the areas where direct intervention would not be possible, as the women living in that area would understand the current situation better than anybody else. Hence, it was suggested that their efforts were appreciated.

It also dealt with provisions of custody and guardianship laws and suggested that in cases where parents are separated or died or left the children to look out for themselves then in such cases, the major thing that should be given utmost priority should be that of the child's best interest, regardless of any provision of any personal law of the community that the child belong to.
Mentioned below are some the major changes that the law commission report suggested with respect to various personal laws,

Under Parsi law, the paper tends to make amendments in order to protect the rights of women to inherit the property, even if she marries outside the community.

Under Muslim law, as there is vast inequality with respect to gender, so the paper discussed about curbing the same through codification of laws on inheritance, keeping in mind that the codified law be gender just. The paper also drew attention towards right of widows and even discussed about the changes, by the means of inclusion of provisions of self-acquired property after marriage, it even tends to introduce a new ground of divorce, namely irretrievable breakdown of marriage.

Broadly speaking, in Hindu law, the paper tends to discuss the major problems arising from the marriage issues like that of restitution of conjugal rights, it even suggested changes in rights to properties and discussed the introduction of whole new concepts like that of property of married couple together, and self-acquired property of Hindu female, rights of illegitimate children and also suggested changes in laws of coparcenary, that have been very consistent from a long period of time. It suggested abolition of coparcenary.

The paper also dealt with the most debatable issues of the country like that of polygamy that is allowed among the males of the muslim community and nikah halala, adultery, but specific changes were not suggested, as these issues have been pending among the Supreme court of India.

Now talking about what the paper suggested about the Uniform Civil Code (UCC) in India.

The law commission clearly mentions that "Uniform Civil Code is neither necessary nor desirable", the reason being that as India is a diverse nation, consists of various religions, beliefs and faiths and therefore various personal laws exists, and keeping this is mind the commission has suggested various changes in personal laws rather than codifying all the personal laws into a secular law, as doing so would violate the fundamental rights guaranteed by the constitution.

According to the report, the recommendations like that of fixing the age of marriage of both boys and girls at 18 years, making adultery as a ground for divorce and abolishing the polygamy by law will curb the situation and will be beneficial than implementing UCC.

Currently, the Supreme court has five pending petitions, that were filed last year by BJP leader and Advocate Ashwini Upadhyay. The first and second petition demanding for fixing the age of boys and girls at 21 to promote gender equality and demanded uniformity in maintenance and alimony. The third petition demanding to implement uniform laws that deal with adoption and guardianship laws as different religions, has different laws for the same. The fourth petition demanded enactment of uniform succession and inheritance law as various personal laws have laws that are not in favor of women, so uniform laws relating to this will promote gender equality. The fifth petition was basically a transfer petition, which demands the two petitions one filed in Delhi HC and one filed In Rajasthan HC to be transferred and dealt by the Supreme court.

In short, all the petitions demanded for some sort of implementation and enactment Uniform Code as the current laws of above-mentioned issues, hamper the fundamental right provided by constitution under article 21 and destroy the basic objective of achieving gender equality. But these petitions are still pending before Supreme court.

According to me, Uniform Civil Code is defined under article 44 of the constitution of India as a part of Directive Principles. It states that it is the duty of the state to implement a unified civil code and should act as a common law for all the Indians despite the personal laws that relate to issues like that of divorce, adoption, inheritance etc. and the directive principles should be followed for good governance but cannot be imposed by the law. As per the constitution, India is a secular country which means that nobody should be discriminated on the basis of religion. India being a diverse country with various personal laws, which are formed on the basis of beliefs and faith and thus cannot be blended with secular exercise. The same was held in SR Bommai case. 

So, enactment of UCC in India at this point of time, will socially and politically hamper the sentiments as UCC will lead to abolishment of personal laws of the people as the personal laws are based on their personal beliefs and faiths. So instead, as recommended by the Law commission report, the government can make changes in various personal laws, so that they were gender just and equal and suppress nobody. But if after making reforms to the current personal laws, the situation does not get under control and still the issues like gender inequality etc. prevails then UCC should indeed replace various personal laws.

Now, let us discuss the obligations under international laws, on enactment of such code.

According to international law, when a country approves or ratifies a particular international instrument then it has to bound by the provisions of the same. And as India has ratified, with some of instruments, it is bound to follow the provisions. It is legally bound to ensure that there is no gender biasness involved in domestic laws, but we would agree that there is gender disparity present in personal laws of the country.

Despite lots of efforts of the government and judiciary as well like that of in the case of Shah Bano case, where the court held that the women is entitled to claim maintenance form husband even after he has paid the mehr amount to her. It was held that section 125 of CrPC, which says that every woman has right to claim maintenance does not contradict the Muslim personal law stating that she cannot claim if the husband has paid her mehr amount, and section 126 of CrPC is religion neutral and is applied to every gender despite of their religion. Similarly, in Sarla Mudgal case, the court mentioned that the Parliament needs to develop uniform law. And the same idea is reflected in many other cases, so clearly judiciary has done enough with this regard.

So, any differential treatment based on the religion is not allowed as per the convention signed by India, and if it done, then it clearly violates the provisions of the same. So, it would not be wrong to say that the personal laws are hampering the lives of many people, especially women and in order to curb so, uniform civil code has to be implemented, to bring the national laws in uniformity and in order to bind with the provisions of the international treaty.

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