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The need is for comprehensive family law reform

The need is for comprehensive family law reform

As part of fulfilling BJP's election promise of implementing a common civil code for India, Narendra Modi government entrusted the Law Commission in 2016 with Supreme Court former judge Justice B S Chauhan as chairman with the task of studying the prospects of a Uniform Civil Code (UCC).

The period of two years now being completed, the 185-page report prepared by the Commission has been submitted as a consultation paper. And the most significant aspect of the report is the Commission's finding that the uniform personal laws are neither apt nor necessary for the nation. The Commission does not back the constant demand of not only the Sangh Parivar but also the hardline secularists that a UCC applicable for all the religious sections and communities for national integration, is essential. The Commission recommends retaining the diversity of personal laws by ensuring that the fundamental rights as guaranteed by the Constitution will not be violated. It points out that secularism asserted by the Constitution should not deny the country's plurality. Given that there is no consensus in the case of UCC, it recommends a reform of family laws by retaining the diversity of existing personal laws. It is the same factors disclosed by Justice Chauhan to the media earlier that have been emphasized in the report submitted too.

In India, there are family laws and customs that vary according to the regional and caste differences in the Hindu community. Alongside, the family laws and precedents of religious communities such as Muslim, Christian, Sikh and Parsis differ from each other. It is impractical to integrate all of these and form a uniform civil code. Article 44 of the directive principles of the Constitution says that the 'state shall endeavour to secure for citizens a uniform civil code throughout the territory of India'. Other than stating broadly, it neither asserts that UCC is essential nor sheds light on a practical outline. Even M S Golwalkar, who had been the chief ideologue of Sangh Parivar that uses the threat of uniform civil code to intimidate the religious minorities, was of the view that it was not a necessity for national integration. The conclusion which the Law Commission appointed by the BJP government has reached now, after studying all the aspects, is that a uniform civil code is not viable. Hence the controversies and debates related to this need not be continued.

On the other hand, the Commission is of the opinion that family laws are to be reformed and unified as far as possible. It has also put forward certain suggestions which may help that process. Examples are that adultery, either by man or woman, should be treated as grounds for divorce and the process of divorce should be simplified. The Commission points out that women tend to invoke the law against persecution of women as an easy escape from agonizing matrimonial relations. Further, in the matter of dowry, courts generally ignore the provision that giving dowry constitutes an offence as much as receiving it does. It is a moral truism that divorce is to be obviated as far as possible. But, if a couple cannot obtain a divorce even after they are convinced about their inability to get along together, and for that they raise false charges and spend years on litigation in courts, then it is better to put an end to that sad situation. The recommendation by the Commission that the marriageable age for both boys and girls should be unified at 18, is also unlikely to invite much opposition. For, one reason for suicides by amorous adolescents resulting from unfulfilled love is the age bar of the male, i.e his not having reached the marriageable age. However, the recommendation to add a provision in marriage contract making polygamy a criminal offence, is bound to be controversial. The Commission itself does observe that even in the Muslim community where it is permitted, incidence of polygamy is rather rare.

At the same time, it is among the religious communities that prohibit polygamy where the practice is relatively high. In any case, since polygamy - which is permitted only on condition of showing fairness between wives – is being misused, those who stand for justice are unlikely to dispute that there should be some legal checks. But not everyone would agree with the argument that when polygamy is allowed for men, it would be discriminatory to forbid polyandry for women, and therefore polygamy should be made a criminal offence. When there are provisions in personal law for a woman to seek ways of divorce in unavoidable circumstances, she can invoke that to get divorce and then marry a different man. That being so, many may not deem it to be a gender bias. And nearly everybody treats polyandry as primitive. In any case, the criminalization of polygamy merits being subjected to open and unbiased debates. In ultimate analysis, the need of the hour is not uniform civil code or legislations along the lines proposed by the Commission, but a comprehensive reform in family laws. What is desirable for all mankind, regardless of differences among communities, are simple and transparent family laws that ensure equal justice for both man and woman. And that in turn calls for objective and serious discussions at all levels. May the Law Commission's report be a trigger for that.

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