‘Reform of Family Law’ by the Law Commission says the issue of family law reform does not need to be approached as a policy that is against the religious sensibilities of individuals..
A RECENTLY released consultation paper on ‘Reform of Family Law’ by the Law Commission says the issue of family law reform does not need to be approached as a policy that is against the religious sensibilities of individuals. It also emphasised every citizen’s right to freedom of religion needs to be protected.
The Government of India, in June 2016 through a reference, had entrusted the Law Commission with the task of addressing the issues concerning a uniform civil code. The Law Commission took the opportunity to address the ambiguity that has long surrounded the questions of personal law and uniform civil code in India. The consultation paper’s observations are important in the context of ongoing legal battles over instant triple talaq (divorce), polygamy and Nikah Halala as the Law Commission has not recommended any comprehensive changes.
In India, the Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim of formulating an Islamic law code for Indian Muslims. The British, who were at this point in time governing India, were trying to ensure that Indians be ruled according to their own cultural norms. Since 1937, the Shariat Application Act (many Muslims find it far from being perfect) mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute, the State shall not interfere. According to census data from 2011, the divorce rate among Muslims is 0.56 per cent, less than the Hindu community, which stood at 0.76 per cent.
On the Uniform Civil Code (UCC), the Law Commission has made a significant observation, insisting that it is neither necessary nor desirable to have one set of laws applicable to all citizens of the country. Instead, it has recommended religion-wise amendments in Hindu, Muslim and Christian personal laws to end discrimination against women within the communities and make civil laws gender neutral.
The Commission has recommended three notable recommendations regarding Muslim Personal Law.
- Codify Inheritance Law: A complete code, i.e., Muslim Code of Inheritance and Succession, applicable to both the Sunnis and the Shias may be formulated for the sake of clarity. This would entail abolition of the Muslim Personal Law (Shariat) Application Act, 1937. In practical terms, this may be a tricky issue both at political and societal level. It may be recalled that attempts to codify Muslim Personal Law (Shariat) Application Act, 1937 as well as the Dissolution of Muslim Marriages Act, 1939 were made during Nehruvian era with an idea about creating a Muslim Law Committee. However, this was later dropped owing to opposition within the community. It was then left to the judiciary to offer progressive interpretation of Quranic texts.
- Adultery should be introduced as a ground for divorce through an appropriate amendment to the Dissolution of Muslim Marriage Act, 1939. At present as per the Muslim law, a wife can obtain khula or divorce on grounds of husband’s impotency, being missing for prolonged period, failure to provide maintenance, failure to perform marital obligation, imprisonment of over seven years, etc., but not on grounds of adultery. It is important that men and women both have access to the same rights and grounds for divorce. The Act, 1939, should also contain ‘adultery’ as a ground for divorce and should be available to both men and women.
- The Nikahnama (marriage contract) itself should make it clear that polygamy is a criminal offence and section 494 of the Indian Penal Code (IPC) will apply to all communities. This is not recommended owing to merely a moral position on bigamy, or to glorify monogamy, but emanates from the fact that only a man is permitted multiple wives which is unfair. Since the matter is subjudice before the Supreme Court, the Commission has reserved its recommendation.
Commission Chairman Justice B.S. Chauhan has observed that most countries across the world are now moving towards recognition of differences. “Mere existence of differences does not imply discrimination, but is indicative of a robust democracy,” Chouhan, a former Supreme Court judge, wrote in the introduction of the paper.
The other significant recommendations of the Law Commission are:
- Compulsory registration of marriages: The Law Commission has suggested that the government of India should introduce an amendment to the Registration of Births and Deaths Act to fulfil the Commission’s earlier recommendation in its 270th Report as well as the Compulsory Registration of Marriages’ Bill (2017).
- Uniform age of consent for marriage: As per the Law Commission, the legal age for marriage for men and women alike should be the age of majority as per the Indian Majority Act, 1875, i.e. 18 years. At present, the law provides that a woman can marry on attaining 18 years, whereas a man has to attain 21 years. Among other things, the Commission noted that such a law simply contributes to the stereotype that wives must be younger than their husbands.
- Irretrievable breakdown of marriage as a ground for divorce: It has been recommended that the irretrievable breakdown of a marriage be recognised as a valid ground for divorce, where there is no scope for reconciliation between the couple. This would also help curb false allegations of cruelty etc. made against a spouse to hasten the process of divorce.
- Community of property upon marriage and divorce: Both spouses should be equally entitled to property acquired after marriage. This is not to mean that there is an absolute equal split of property at the end of the relationship, and Court discretion in these matters should be retained. However, the Commission has recommended that the availability of a no-fault divorce must accompany such community of self-acquired property.
- Laws should be made disabled-friendly: Inter alia, the Commission has recommended that leprosy be deleted as a ground for divorce. To move towards a more inclusive society, the Commission has also recommended that appropriate amendment be made so that persons with illnesses that can be cured or controlled are not barred from marrying. Such diseases should also be excluded from being grounds for divorce.
Deletion of 30-day notice period under the Special Marriage Act, 1954: This time period is often misused by disapproving kin to discourage the marriage. As an alternative to deleting such provisions, it is suggested that adequate protections for the couple be introduced against disapproving kin seeking to stop their inter-caste/inter-religious marriage.
On the Uniform Civil Code (UCC), the Law Commission has made a significant observation, insisting that it is neither necessary nor desirable to have one set of laws applicable to all citizens of the country.
On the issue of instant triple talaq, the Law Commission report has observed that many previous verdicts by courts had expressed their disapproval of the corrupt practice before it was formally set aside in 2017. For instance, in Shamim Ara v. State of Uttar Pradesh, the Court had dealt with the issue of triple talaq in substantial detail. The Supreme Court further observed that instant triple talaq aka Talaq e–Biddat by its very definition has been understood as a practice that evolved as an aberration and it has been held to be a practice that was against the principles of Sharia and against the spirit of Quran and sayings of Prophet (the Hadees). Further, Supreme Court Justice Nariman wrote that what is bad in theology, cannot be good in law.
The Law Commission has observed that a conflict within personal laws is not merely between fundamental rights of equality and that of freedom of religion as it is popularly framed. It is, in fact, located even within each personal law code. For example, as the Shamim Ara case pointed out, in reference to triple talaq, there is also a conflict between what the true sources of personal law propagate and the way in which anglo-religious laws were codified.
The Law Commission has recommended that any man resorting to unilateral divorce should be penalised, imposing a fine and/or punishment as per the provisions of the Protection of Women from Domestic Violence Act, 2005 and anticruelty provisions of IPC, 1860, especially section 498 (Enticing or taking away or detaining with criminal intent a married woman). This, according to the commission, would automatically curb the number of cases for Nikah Halala.
The Supreme Court in 2017 had struck down instant triple talaq, pronouncement of three talaqs in one sitting. The standard talaq procedure or divorce in Islam is called “talaq-ul-sunnat,” an ideal form of dissolution of marriage contract among Muslims. Under the triple talaq spread over three lunar month cycle, once the husband pronounces talaq, he can arbitrate and re-conciliate with the wife. In case of cohabitation between the couple, during these three months, the talaq is revoked. However, when this period of three months expires and the husband does not revoke the talaq either expressly or by consummation, the talaq is irrevocable and final. As per Islam, triple talaq (even as standard procedure) is most despicable, reprehensible act. In Quran, it is said that if divorce is pronounced twice, the husband should either retain her honourably or release her kindly. If he divorces her third time, she is unlawful for him unless she marries another husband (and he also divorces her willfully).
Once three lunar month cycle is over without husband approaching, the divorce as per Muslim law becomes irrevocable and final. There is sectarian divide on the issue of reuniting. Most sects discourage re-marriage among divorced husband and wife. However, as per Hanafi sect, (majority of Sunni Muslims in India follow Hanafi school named after Imam Abu Hanifa), husband and divorced wife can remarry if she marries someone else — not a pre-requisite but a coincidence. But in practice, remarriage, also known as Halala, is used as a corrupt form of marrying again. Even then, she has to wait before reuniting with the first husband. If the woman is pregnant then, she will have to wait until she gives birth. If she is not pregnant, then the period is three complete menstrual cycles. If Nikah (Muslim marriage) is performed on the condition of Halala, then this is a grave sin and unlawful. The Prophet is said to have said, “Allah’s curse is on the one who makes a contract or agreement for Halala. Both the one who carries out Halala and the one who it is done for.”
The Law Commission paper admits that while polygamy is permitted within Islam, it is a rare practice among Indian Muslims. 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. Comparative law suggests that only few Muslim countries have continued to protect the right to polygamy but with strict measures of control. For example, Pakistan has been successful in preventing bigamous marriages as tough procedures are in place for its regulation. In 2017, the subordinate Court of Lahore gave a progressive interpretation to the provision of 2015 family law enactment on bigamy and held that a second marriage conducted without the permission of the existing wife amounts to ‘breaking the law.’ The Lahore court ordered the man to serve a six-month jail term and pay a fine of 200,000 Pakistani rupees.
In fact, in Pakistan, the law prohibits contracting a marriage during the subsistence of an earlier marriage. If, in exceptional circumstances such a marriage is to be contracted, an application in writing to the Arbitration Council has to be made. The application so made shall also have prior permission of the existing wife/wives. The Council will record its decision in writing, whether granting such application or not, and such decision shall be final. However, if the husband marries without the permission of the Arbitration Council, he shall be liable to pay the entire amount of dowry to his existing wife/wives, immediately. And on complaint, he can be convicted for the same.
The Law Commission of India has in its 18th Report acknowledged, perhaps for the first time, the international context of Islamic laws in India. That report had pointed out that reforms relating to Muslim Personal law such as enforcement of monogamy by imposing restrictive conditions for polygamous arrangements had been carried out in various countries such as Morocco, Algeria Tunisia, Libya, Egypt, Syria, Lebanon and Pakistan. The practice, however, continued to prevail in Saudi Arabia, Iran, Indonesia and India.
So, there is a need to promote harmony between religion and constitutionalism in such a way that no citizen is left disadvantaged on account of their religion.