12, Jun 2017
Leveraging Our Laws: A Comparative Account and Conscious Effort to Strengthen Various Personal Laws in India
India – a kaleidoscope of cultures, has always been immensely diverse in thought as well as in action. People of different religions reside in India in harmony as also in disharmony. Some are the original inhabitants such as the Hindus; some, who sought refuge such as the Parsis and Jews; others, the foreign rulers such as the Muslims and Christians. Nonetheless, they all continue to thrive together as rightful citizens of India.
In secular India, all citizens are governed by uniform criminal and contractual laws. However, their family laws are different. Each community has its own personal law governing marriage, divorce, adoption, custody, inheritance and more. Which community a person belongs to, is generally decided by his/her birth or conversion. Thus, Hindus are governed by the Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956; Hindu Succession Act, 1956. The Parsi community is governed by Parsi Marriage and Divorce Act, 1936. The Muslims follow the uncodified Shariah Law, the Shariah Application Act, 1937, Dissolution of Muslim Marriages Act, 1939, Muslim Women Protection of Rights on Divorce Act, 1986. The Christians are governed by Indian Christian Marriages Act, 1872, Divorce Act, 1869. This multiplicity of laws does to a large extent uphold and honour the fundamental right of citizens to practice and profess their religion but at the same time, it also causes inconvenience and upheaval in the delivery of justice. Thus, we aren’t left with much of a choice. Either we choose our religious preferences or simply follow the egalitarian secular laws on matrimonial issues, namely the Special Marriage Act, 1954.
Not recently, but ever since A44 has been a part of the Constitution of India, deliberations have taken place to decide the possibility of implementing a Uniform Civil Code in India. The current stir relating to the feasibility and applicability of the UCC (as popularly abbreviated) seems unnecessary to me. The need of the hour is to strengthen the currently prevailing laws, to rid the existing laws of the sting of discrimination and not to enforce homogeneity on the heterogenous Indian diaspora.
The prime factors driving this debate are – a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices and gender justice – against discrimination of women. In my opinion, both these factors are flimsy and unconvincing. It is important to highlight the fact that personal laws of all communities in India, not just one, are discriminatory in one way or another. This is due to the inherent structure of patriarchy which exists in our society. In fact, this structure pervades all others and has its clutches shackling Indian society since times immemorial. The power dynamics in this country are so skewed that the enforcement of a uniform civil code will do only little to alleviate the anomaly. The underlying principle should be that constitutional law should supersede religious law in a secular republic. However, many practices governed by religious traditions are at odds with the fundamental rights guaranteed in the Indian Constitution. The remedy to this would be to identify the vitiating factors in each community’s personal laws, amend and align them with the Constitutional principles.
Often, when we talk of archaic personal laws, the first thing that comes to mind is the matter of ‘Triple Talaq’ and the discriminatory Muslim personal laws. Well, there’s much more to it than that. Let us take a holistic look at the personal laws of the religious communities in India and explore areas for improvement, without politicising issues, to bring about a fair and just judicial system for every citizen of India
To begin with the Christian community in India, which is governed by Indian Christian Marriage Act, 1872 and Divorce Act, 1869. Matters relating to succession are governed by the Indian Succession Act, 1925. The laws for dissolution of marriage under Indian Divorce Act, 1869 severely discriminate against women. S.10 of the Divorce Act, 1869 provides for dissolution by husband on the ground of adultery by wife only. On the other hand, a wife can seek divorce on the grounds of conversion of husband to another religion and marriage with another woman; or incestuous adultery, or bigamy with adultery, or marriage with another woman with adultery, or rape, sodomy or bestiality, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.
Thus, for a Christian man to seek divorce, one fault ground is enough whereas a Christian woman has to prove multiple fault grounds. This provision forces a Christian woman to live in a marriage which is painful, unhappy, devastated, broken – as has also been laid down in the case of Ammim v. Union of India. In this case, the Kerala High Court said that this provision violates Article 21 and 14 of the Constitution of India. A bigger problem is the tussle between the Roman Catholic Church in India and the Formal Courts, it is to be noted that marriages annulled in the ecclesiastical courts/ churches are not valid in the eyes of law in India. At the same time, a marriage dissolved by a decree of court is not accepted by the Roman Catholic Church. Thus, Christians seeking to dissolve/ annul their marriage must seek a decree of Nullity from the Church as well as the Court of law. The Indian Divorce Act, 1869 states that after a decree of divorce has been provided by the District Court, a special bench of the High Court must confirm the divorce, this provision makes the process of seeking divorce lengthy, tiresome, tedious and increases matters before courts, thus burdening them further. Several efforts have been made by Christian Groups to identify, alter and amend these shortcomings in the law. Their efforts have paid off with the recommendations of 164th Law Commission of India Report in 1998. Thus, came into force, the Indian Divorce (Amendment) Act, 2001, which to a large extent has cured the law of the anomalies. Thus, a conscious effort to create awareness within the religious community, logically persuade everyone to arrive at a consensus and drive a social change is the way to go to strengthen our laws.
Next, we must discuss the restrictive laws of the Parsi community. Neither Parsi Marriage and Divorce Act, 1936 nor the Amendment Act, 1988 provide for adoption of children. The community does not recognise adoption as a means of child bearing. This is a very inequitable practice, both for the parents and the child. Every couple must have the right to bear a child. If biologically this is not possible, the couple must have the option to adopt a child. Further, the Act provides for the establishment of Parsi Matrimonial Courts with an appellate jurisdiction to the High Court. With an already established, secular redressal system in place, the provision for special Parsi Marriage Matrimonial Court, is unnecessary and defeats the purpose of the formal courts of law. Besides these flaws, there are also progressive provisions in the Act such as, on dissolution of marriage, either spouse can claim maintenance from the other, both pendente lite and permanent. The custody of children upon dissolution of marriage can be given to either of the spouses or any 3rd party keeping in mind the best interest of the child. Either parent can be the guardian of the child without restriction, unlike the practice in Muslim Law. Finally, the event of conversion to another religion by one of the parties to the marriage, does not make the marriage null and void, unlike the practice in Hindu Law.
Speaking of Hindu Law, it is imperative to put the spotlight on the anomalies in the law governing the majority of the population in India. Besides the Hindus, the Sikhs, Jains and Buddhists, all fall within the ambit of this law. To begin with, the practice of marriage which is a sacrament under this law is grounded on the derogatory belief and practice of “Kanyadan”, a bride is considered as the property of her father which is donated to the groom upon marriage. The concept of Restitution of Conjugal Rights as practiced by the colonial powers was first introduced to Indian society by Hindu law and is still a part of it. This practice is considered to be in violation of A21 of the Constitution of India as it forces sexual cohabitation on spouses not desiring to live together. In T. Sareeta v. Venkatasubaiah, this provision was stated as unconstitutional. Such archaic provisions which are still part of our laws must be abrogated. Though the Muslims are accused of being polygamous, it’s not them alone, the practice continues among Hindu men also. Research has it, bigamy is also prevalent among Hindus, perhaps in numbers larger than those of Muslims. A Hindu woman who seeks divorce or demands maintenance on grounds that her husband has contracted a bigamous marriage must prove that he has married again. To add to the torment, marriages under the Hindu Marriage Act are not automatically registered hence it is hard to prove the existence of the marriage. The Hindu Succession Act, 1956 makes provision for a Hindu Undivided Family to deliberately ensure that property remains with the male line of descent. A son gets a share equal to that of his father whereas, a daughter only gets a share in her father’s share. Worst still, she cannot reside in the family home unless she is single or divorced, and cannot claim her share of property as long as the men of the family continue to live in it. Also, a Hindu woman has no right to her matrimonial home, unless she can prove that it was purchased with her earnings. Thus, whether in their natal home or in their matrimonial home, Hindu women can never find comfort or security. Every day is a struggle and the laws provide little or no help what so ever. We must understand that women are equal partners in the marriage, and their contribution has to be recognised with an equal division of matrimonial property. Maintenance is the right of every woman and must not be mistaken for compensation. The Hindu Matrimonial law enumerates an extremely long drawn procedure for dissolution of marriage which does not relieve the spouse from the marriage but creates further adversity. Such hardship desists many, especially women from filing for divorce, despite facing violence and abuse.
For reasons unknown, adoption laws in all religious communities are either absent or discriminatory. Hindu, the only community to recognise adoption, also discriminates as to who can adopt. While any major, Hindu male of a sound mind may adopt a child (boy/girl), a Hindu woman has more prerequisites to fulfil. Along with being a major, Hindu female, of sound mind, she must also be unmarried or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. To put it in simple words, a Hindu woman can adopt a child only if her husband ceases to exist in the eyes of law. What is this, if not discrimination against the one who is to nurture and protect the child?
Having known the harsh realities about each of the religious community’s laws, we certainly can deduce that Muslim personal law is not the only demon we need to deal with. Yes, the Muslim personal law does also have unconstitutional elements which need to be repealed and major efforts have already ensued in that direction. To name the obvious, practices of Triple Talaq, Nikah Halala, Polygamy need to be banned. This is primarily because these practices are extra judicial, ultra vires to the law and against the basic principles of our Constitution. The Five Judge Constitutional Bench has recently heard several cases in this regard and the nation keenly awaits its verdict. Some of the less criticised yet alarming issues are of Muta Marriage or temporary marriage, no maintenance, guardianship. Muslim uncodified law gives a Muslim man the option to marry as many times as he wants, to women belonging to a Qitabi religion for as long as he wants. The only prerequisite is that the duration of the marriage must be predetermined. Laws for maintenance of a Muslim woman are quite skewed. The latest judgement in this regard is Danial Latifi & Anr vs Union Of India on 28 September, 2001. However, the provision of reasonable amount of maintenance to be provided to a divorced Muslim woman beyond the period of Idda is neither accepted in theory nor in practice. Worst still, the position of a woman in Muslim law is so poor that the father is recognized as sole guardian of the child’s person and property and after him his relatives. Mother is not recognized as a guardian, natural or otherwise even after the death of the father. Efforts must be made to straighten out these irregularities as well.
To conclude, establishing a common code for all citizens rather than rules based on religious practices, may pose a problem for the Indian democracy. The Uniform Civil Code may itself be ‘unconstitutional’ by restricting religious freedom. Yet, the cornerstone should be that every citizen of India is protected by the constitutional laws and none is denied justice. The need of the hour is to amend and update existing personal laws to ensure equality and gender justice especially in aspects such as marriage, dissolution, adoption, succession and maintenance. To quote B. R. Ambedkar “I like the religion that teaches liberty, equality and fraternity”. Taking from this, let the supreme religion guiding our thoughts, actions and laws be that of humanity. Let us try to align the personal laws in a manner in which they fall within and in line with the Constitutional law, in the true spirit of India being a secular republic.
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