Law Commission report on 'Family Law Reform' soon
What started off as an exercise to examine the possibility of a common civil code, as was evident in the release of the Law Commission’s ‘Questionnaire on Uniform Civil Code’ in October 2016, is soon set to culminate in the submission of a report on ‘Family Law Reform’ that will suggest ways to codify and reform personal laws of all religions. With the two-year-long consultation process drawing to a close on July 31, the Law Commission is expected to finalise its report before the end of its term under Justice B S Chauhan on August 30, 2019. The process was initiated following a directive from the Law Ministry in June 2016 asking the Law Commission to examine the matter of Uniform Civil Code.
“The aim is not to identify an identical procedure for all but to correct the gender discriminatory nature of family laws across religions. This would be done with reference to the precedents already available in the law,” said Law Commission sources. For instance, with reference to child custody laws among Shias which, in case of a divorce, allows the father the custody of the son above the age of two years, the Commission will refer to the Githa Hariharan vs Reserve Bank of India Supreme Court order of 1999 where it ruled that women were as much the natural guardians of their children as men. Similarly, with adoption being disallowed or restricted under Muslim and Christian personal laws, the Commission will refer to the Shabnam Hashmi vs Union Of India 2014 Supreme Court order that gives prospective parents the right to adopt children irrespective of their religious background.
According to sources, this has been the most widespread consultative process of the Law Commission involving 70,000 responses, 50-odd face-to-face consultations with women’s rights groups, advocates, sexual minorities, religious groups and experts in Muslim personal law such as Arif Mohammad Khan, Salman Khurshid, former chief justice of Jammu and Kashmir High Court Badar Durrez Ahmed.
With the Supreme Court already declaring instant triple talaq unconstitutional, the Law Commission is also expected to look at how to bring men under the purview of Dissolution of Muslim Marriages Act, 1939, under which currently women have to approach the court of law if they want a divorce. “In all other kinds of triple talaq, the problem is not speed. The three months period in fact means far less agony for the women as opposed to personal laws of Hindu or Christian or even the Special Marriage Act, wherein it takes anywhere from one year to three years. The issue in triple talaq is its arbitrary nature. Even if the man chooses to approach an extra-judicial authority like a Qazi for talaq, he has to qualify the reasons for the divorce. Likewise, the Hindu personal law doesn’t allow for unilateral filing of no fault divorce, which also needs to be looked at,” said sources at the Law Commission.
In terms of property rights, the Muslim personal law which allows daughters only half the share of sons will be examined as will be the Hindu personal law which, while it allows for an equal share, has a very low claim rate for women, and the Parsi law wherein a girl marrying outside the community is disinherited. Sources said that the report, however, will exclude 26 per cent of the country’s area ie Northeastern regions, Jammu and Kashmir and tribal areas. These are areas that are allowed to have their own local or tribal laws under the 5th and 6th Schedule of the Constitution as well as sub-sections of Article 371.
AIMPLB against proposal to reform civil laws
The All India Muslim Personal Law Board has told Law Commission that besides opposing Uniform Civil Code, it is against any proposal “to reform civil laws”. AIMPLB general secretary Mohammed Wali Rahmani said the board has written to the commission, “The board considers that citizens of this country follow different religions, cultures and traditions, and live their lives accordingly. We further believe that determination of religious principles, traditions and cultures do not fall within the scope of functioning of government and accordingly the said issues should not be made part of the law making process.”
“The aim is not to identify an identical procedure for all but to correct the gender discriminatory nature of family laws across religions. This would be done with reference to the precedents already available in the law,” said Law Commission sources. For instance, with reference to child custody laws among Shias which, in case of a divorce, allows the father the custody of the son above the age of two years, the Commission will refer to the Githa Hariharan vs Reserve Bank of India Supreme Court order of 1999 where it ruled that women were as much the natural guardians of their children as men. Similarly, with adoption being disallowed or restricted under Muslim and Christian personal laws, the Commission will refer to the Shabnam Hashmi vs Union Of India 2014 Supreme Court order that gives prospective parents the right to adopt children irrespective of their religious background.
According to sources, this has been the most widespread consultative process of the Law Commission involving 70,000 responses, 50-odd face-to-face consultations with women’s rights groups, advocates, sexual minorities, religious groups and experts in Muslim personal law such as Arif Mohammad Khan, Salman Khurshid, former chief justice of Jammu and Kashmir High Court Badar Durrez Ahmed.
With the Supreme Court already declaring instant triple talaq unconstitutional, the Law Commission is also expected to look at how to bring men under the purview of Dissolution of Muslim Marriages Act, 1939, under which currently women have to approach the court of law if they want a divorce. “In all other kinds of triple talaq, the problem is not speed. The three months period in fact means far less agony for the women as opposed to personal laws of Hindu or Christian or even the Special Marriage Act, wherein it takes anywhere from one year to three years. The issue in triple talaq is its arbitrary nature. Even if the man chooses to approach an extra-judicial authority like a Qazi for talaq, he has to qualify the reasons for the divorce. Likewise, the Hindu personal law doesn’t allow for unilateral filing of no fault divorce, which also needs to be looked at,” said sources at the Law Commission.
In terms of property rights, the Muslim personal law which allows daughters only half the share of sons will be examined as will be the Hindu personal law which, while it allows for an equal share, has a very low claim rate for women, and the Parsi law wherein a girl marrying outside the community is disinherited. Sources said that the report, however, will exclude 26 per cent of the country’s area ie Northeastern regions, Jammu and Kashmir and tribal areas. These are areas that are allowed to have their own local or tribal laws under the 5th and 6th Schedule of the Constitution as well as sub-sections of Article 371.
AIMPLB against proposal to reform civil laws
The All India Muslim Personal Law Board has told Law Commission that besides opposing Uniform Civil Code, it is against any proposal “to reform civil laws”. AIMPLB general secretary Mohammed Wali Rahmani said the board has written to the commission, “The board considers that citizens of this country follow different religions, cultures and traditions, and live their lives accordingly. We further believe that determination of religious principles, traditions and cultures do not fall within the scope of functioning of government and accordingly the said issues should not be made part of the law making process.”
