From marriage to adoption, how Uniform Civil Code could subsume personal laws across religions
The Uniform Civil Code is back in the news again after Prime Minister Narendra Modi made a strong push for it. If it comes into force, separate personal laws governing marriages, divorce, and inheritance of Hindus, Muslims, Sikhs, Parsis, and other communities will be subsumed.
WHAT IS LIKELY TO BE COVERED UNDER UCC?
Marriage, divorce, maintenance, guardianship, adoption, inheritance, and succession are all issues that come within the definition of a 'civil code'. Currently, under Indian law, all these issues are governed by separate provisions under religious customary laws or codified laws pertaining to each religion in India.
This means that dozens of legislation and provisions would have to be considered once the Government of India looks towards creating a codified Uniform Civil Code. Additionally, the regional differences, including the practices of state-specific communities, castes, and tribes, would also have to be considered.
It may also have an impact on the rights of the LGBTQ community, on income tax laws, child protection laws, and various other legislation. There have been numerous demands for bringing in gender and religion-neutral provisions under civil law, similar to European law.
The Law Commission of India also opened public consultation on the issue on June 14, calling for suggestions and opinions to be submitted by July 15. This comes five years after the 21st Law Commission, in August 2018, issued a white paper on UCC following two years of consultations. It noted that, "The fact that secular laws such as the Special Marriage Act, 1954 also continue to suffer from lacunae suggests that even codified or religion-neutral laws offer no straightforward guarantee of justice."
MARRIAGE, DIVORCE
Even in its 2018 report on UCC, the 21st Law Commission noted that "Marriage and divorce have had a disproportionate share in public debate among all matters of family law." This continues to be the focus of political debate on UCC, which is being discussed in terms of "gender justice" and the rights of women in divorce.
However, a look at the various codified laws shows certain similarities and differences in the way "marriage" is defined, solemnised, registered, and can be dissolved.
For example, adultery as grounds for divorce is available across Hindu, Muslim, Christian, and Parsi marriage laws, but the definitions are different.
Under Christian law, a woman has to prove cruelty as well as adultery to obtain a divorce from her husband. Under Muslim law, adultery is not recognised as a ground for divorce by a woman unless it can be proved that the husband committed adultery with "women of evil repute or leads an infamous life".
Hindu law allows the husband to seek divorce for adultery, but not the wife, who has to prove cruelty or desertion along with adultery to get a divorce. On the other hand, Parsi law allows both spouses to seek divorce for adultery.
The issue of Triple Talaq or instant pronouncement of divorce by Muslim husbands has been a topic of Supreme Court verdicts as well as multiple PILs. Additionally, the issues of Muta (contract marriage), Nikah halala (intercourse with a different man in case of divorce), etc., practices have come under public and court scrutiny. These have raised serious questions about protection of women, dignity, and privacy.
DESERTION, ABANDONMENT
Another example is "desertion" and abandonment. The period of separation and abandonment by the husband, at which the wife can seek divorce, are different in various religions. For Hindus, it is two years, while Muslims allow four years. The Parsi Marriage Act and the Indian Marriage Act require seven years of desertion for a divorce to be obtained.
Yet another controversial issue is regarding Sikhs, whose marriages are governed under the Anand Marriage Act, which does not recognise divorce or adoption.
So far, Sikh couples seeking registration for marriage or opting for divorce have been covered under the provisions of the Hindu Marriage Act (HMA), which has seen opposition from Sikh groups and leaders.
COMPLICATIONS REGARDING AGE OF CONSENT
The definition of a "valid marriage" also depends on the valid age of consent, which is a hotly debated issue in the country. Even though the Indian Age of Majority Act, Prohibition of Child Marriage Act, and the POCSO Act prohibit marriage of a person under 18, Hindu law recognises the marriage between a 16-year-old girl and an 18-year-old boy as valid but voidable.
Muslim Law in India recognises the marriage of a minor who has attained puberty as valid. However, even among Muslims, while Shias consider a boy to attain puberty at the age of 15 years and a girl at the age of nine or 10 years, the Hanafi Sunnis consider it to be 15 years of age for both sexes.
Under the Hindu Marriage Act, the marriage of a child under 18 years of age is not banned but is "voidable" – that means that the underage spouse can seek a divorce after attaining the age of 18.
Complications related to the religious definition of "age of consent" would also have a direct impact on the guardianship of the minor bride, i.e., whether the husband as a guardian would be able to make decisions for medical care of the wife, what would happen if she is thrown out of the marital home, etc.
TERMINATION OF MINOR'S PREGNANCY
Termination of pregnancy of a minor bride would also have to be considered, since under current law, the husband is considered the guardian of a wife, and the Medical Termination of Pregnancy Act and Rules require that the guardian must be informed and give consent in case an abortion has to be performed.
All religions also have certain grounds of divorce, which are available only to the husband or to the wife. These would also need to be clarified and reconciled by the UCC.
Apart from these major religions, the different practices of certain communities and tribes would also have to be considered if a UCC is developed.
MARRIAGE REGISTRATION
The Hindu Marriage Act (HMA) itself allows for recognition of different customary practices for considering a "marriage" complete. Under Muslim and Christian Law, the signing of the marriage contract or registration is mandatory, while for Parsis, the registration of marriage in the temple is mandatory.
There is no Central Law in India for mandatory registration of marriage, even though the Supreme Court in 2006 had issued directions that there must be compulsory registration of all marriages. The issue has been left to various states due to which multiple provisions relating to the provisions and process of registration of marriages that existed prior to the date of the law and for marriages solemnised after the law have been seen.
For example, in Delhi, the government passed the Compulsory Registration of Marriage Act in 2014. The registration process itself has been challenged before the high court as it allows for registration of marriage under HMA or the Special Marriage Act since the other personal laws don't have any such provision.
MAINTENANCE AND ALIMONY
Section 125 of the CrPC provides for maintenance being given to the wife in case of legal separation or divorce. A husband is obliged to pay a portion of his income as "maintenance" to his wife and children.
While this provision is legally applicable to all religions, there has been litigation and protests on this issue from the Muslim community. Following the Shah Bano verdict of 1986, where the Supreme Court held that Muslim women are also entitled to maintenance, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. This act stated that maintenance is payable only during the 'iddat period'.
However, subsequent verdicts of the Supreme Court in the Daniel Latifi case, Iqbal Bano case, and Shabana Bano case have clarified that a wife's right under Section 125 of CrPC is extinguished only when she receives a "fair or reasonable" settlement under Section 3 of the Muslim Women Act.
The wife will be entitled to receive maintenance under Section 125 of CrPC until the husband fulfills his obligation under Section 3 of the Muslim Women (Protection of Rights on Divorce) Act, 1986. Additionally, the Supreme Court has held that a Muslim woman would continue to be entitled to receive the maintenance amount as long as she does not remarry.
Maintenance, however, is not limited to separated wives. The provisions of maintenance also extend to elderly parents and minor children.
This means that any reform in this area would also need to consider the provisions of the Maintenance and Welfare of Parents and Senior Citizens Act, 2007, regarding the responsibility of a son/daughter to maintain their elderly parents.
The Law Commission's analysis in 2018 indicated that the Muslim law and the modern Hindu law (applicable also to Sikhs, Jains, and Buddhists) "are quite comprehensive in regard to the maintenance of children". The statutory laws applicable to Christians and Parsis deal only with the maintenance of children of parents who seek any of the matrimonial remedies.
Under the Special Marriage Act, 1954, a similar provision exists that empowers the courts to pass orders regarding the custody, education, and maintenance of children while entertaining a matrimonial dispute.
Men's rights activists have also raised the demand for maintenance to be made "gender-neutral" to allow for maintenance to be paid to husbands by wives who earn more than them.
In 2015, in ABC vs State of Delhi, the Supreme Court noted that Christian women are "not recognised as natural guardians" of their own children under Christian law, even though Hindu unmarried women are considered the "natural guardian" of their child. The Supreme Court observed that the Uniform Civil Code "remains an unaddressed constitutional expectation".
The Guardians and Wards Act, 1890, governs the principle of the custody and guardianship of a minor. The Act is a secular act that allows the courts to designate the guardian of a minor of any religion.
However, even this act recognises the husband of a minor girl as her guardian, which conflicts with the child marriage prohibition laws and the personal laws that allow the dissolution of the marriage of an underage girl.
GUARDIANSHIP LAWS
Apart from this, the gender imbalance with adoption and guardianship laws would also have to be considered in the case of UCC.
The Hindu Minority and Guardianship Act, 1956, states that the father is the "natural guardian" of a child, and after him, the mother, for a boy and unmarried girl.
For Muslims, due to the Shariat Application Act of 1937, while there is no codified adoption/guardianship law, the Shariat law applies. Under this, the mother is given guardianship of a daughter "until she comes of age, i.e., has her menses," while a son will be under his mother's care "until he is able to eat, drink, dress, and attend to the call of nature on his own". After this, his father will have the right to bring him up.
According to the 2018 Law Commission analysis, jurists have fixed the age for sons at seven years. So, a mother is entitled to bring up her son until he is seven years old. Thus, during the lifetime of the father, the mother cannot technically accept a gift for the minor or make any other decision for the welfare of the child as a guardian.
For Christians, there is no specific provision. The Indian Divorce Act, 1869, and the Guardians and Wards Act, 1890, have endorsed the principle of the "best interest of the child" for the guardianship of a child in case of separation of parents.
Section 49 of the Parsi Marriage and Divorce Act, 1936, also provides that the court has the power to decide the interim custody of the child.
The issue arises once the adoption law comes into the picture. Since an "unmarried woman" is considered "under the guardianship of the father" under Hindu law, the Adoption and Maintenance Act of 2010 had to make specific provisions to allow unmarried women to adopt and become guardians of a child.
ADOPTION
Hindu law treats an adopted child equivalent to a natural-born child.
Under Islamic law, adoption is not recognised. There is no specific statute enabling or regulating adoption among Christians in India. However, individuals from both religions can adopt a child from an orphanage by obtaining permission from the courts under the Guardians and Wards Act.
Succession laws have also been challenged before the courts on grounds of discrimination, with a currently pending petition in the Supreme Court seeking change in the Hindu Succession Act to remove discrimination between heirs of self-acquired property of deceased men and women.
At present, the Hindu Succession Act (HSA) recognises the family members of the husband as primary heirs of the deceased wife, with the wife’s own parents/ siblings being secondary heirs. This issue of equality of heirs and the self-acquired property of a woman was addressed by the Law Commission in the 204th and 207th reports submitted in 2008, seeking reform of inheritance laws among Hindus.
INHERITANCE OF AGRICULTURAL LAND
Additionally, not only the religion-specific laws but also regional laws relating to the inheritance of agricultural land would have to be covered under a UCC. For example, in Uttar Pradesh, the UP Zamindari Abolition and Land Reforms Act, of 1950 governs rights related to land irrespective of whether the tenure-holder is a Hindu, Muslim, Christian or follower of any other religion.
In contrast to Hindu Law, Muslim law does not make any distinction between movable and immovable property. The concept of self-acquired and ancestral property also does not exist in Muslim law. Further, different rules exist between Shias and Sunnis, and there is no concept of inheritance at birth. Inheritance only applies if the holder of the property dies. The division is done by meters and bounds, where a specific defined share of heirs is already determined by the law.
The residue, after the payment of the funeral and other expenses such as debts, etc., devolves on the heirs of the deceased. Sunnis define two classes of heirs- heirs by affinity – wife, husband, and heirs by blood relations – father, true grandfather, mother, true grandmother, daughter, son‘s daughter, full sister, consanguine sister, uterine brother, uterine sister. If they are not available, then inheritance is based on the male line, with brothers and uncles as heirs.
Among Shias, there are blood heirs, and spouses are primary heirs, while other relatives have also been defined. The Law Commission in 2018 suggested codification of the Muslim inheritance law to streamline and define the heirs as well as to remove the disparity in the shares of property that can be inherited by each type of heir.
RIGHTS OF WIDOWS, MARRIED DAUGHTERS
The rights of widows and married daughters also need to be streamlined.
The Indian Succession Act, of 1925 (the Act 1925) is the principal legislative measure in India dealing with the substantive law of testamentary succession in regard to persons other than Muslims and intestate succession in regard to persons other than Hindus and Muslims. However, in its 2018 analysis, the Law Commission noted that this law is “unfair for the widow and mother of the deceased intestate”.
Among Parsis, a woman ceases to be a part of the Parsi community if she marries outside the community. Consequently, her children are not entitled to inherit the property of a deceased Parsi intestate.
The Law Commission in 2018 also recommended recognition of the inheritance rights of illegitimate children, which would also have serious ramifications in today’s scenario, with the increase in live-in relationships, which have been recognised by the courts as “akin to marriage.”
No comments:
Post a Comment