New Delhi: It was in June 2016 that the 21st Law Commission of India was asked to examine the feasibility of a Uniform Civil Code as enshrined in the Constitution.
Now, two years later and after meeting several stakeholders, the commission has released a consultation paper where it has suggested several amendments and changes to personal laws.
The commission has laid down that for equality to be achieved in the real sense, the legal age of marriage for both men and women should be 18. At present, the legal age for women is 18, while that for men is 21.
“For equality in the true sense, the insistence on recognising different ages of marriage between consenting adults must be abolished. The age of majority must be recognised uniformly as the legal age for marriage for men and women alike as is determined by the Indian Majority Act, 1875, i.e. eighteen years of age,” reads the paper.
The commission has not ventured into arenas such as Nikah Halala and polygamy among Muslims but has nonetheless noted that not only was polygamy a “rare” practice among Muslims but the real threat was of others converting to Islam to just enjoy the practice of having multiple wives.
“Although polygamy is permitted within Islam, it is a rare practice among Indian Muslims, on the other hand it is frequently misused by persons of other religions who convert as Muslims solely for the purpose of solemnizing another marriage rather than Muslim themselves,” states the report which was prepared under Justice (Retd) Balbir Singh Chauhan.
The law panel has also recommended that Dissolution of Muslim Marriage Act, 1939, requires amendment to explicitly include adultery as a ground for divorce for both spouses.
With regard to divorces, the commission has stated that inordinate delays in divorce proceedings can be easily avoided if a provision of ‘no fault’ divorce is incorporated in several personal law legislations.
“Where a marriage has ceased to exist both in substance and in reality, divorce should be seen as a solution rather than a taboo. Such a divorce should be concerned with bringing the parties and the children to terms with the new situation and working out a satisfactory basis for regulating relationships in the changed circumstances,” recommends the report.
The commission suggests that simplifying the procedure for couples where no reconciliation is possible would also be beneficial in curbing the false allegations against parties, which are often made in order to hasten the process of divorce.
The commission has also pondered over the area of adultery as a ground of divorce.
In Muslim law, the commission has noted that under Section 2 of the Shariat Application Act, 1939, there are a number of grounds based on which women can seek divorce, however, “men on the other hand are not required to qualify their decision under any of these grounds”.
Hence, the commission has recommended that it needs to “uniformly apply the grounds available under the Act to both men and women as it will have greater implications of ensuring equality within the community rather than equality between different communities”.
Here, the commission has recommended that the Muslim law should also contain ‘adultery’ as a ground for divorce which should be available to both men and women.
Striking to achieve equality under the guardianship act too, the commission recommends deletion of Section 19a of the Guardian and Wards Act, 1980, which states that if the husband of the minor is not unfit, then the court cannot appoint any other person as her guardian.
“The problem in the section is two-fold. First, as the wife is being treated as the property of the husband. Secondly, the section does not take into consideration the welfare of the husband in case he is also a minor,” stated the report which also recommended a change to Section 21 to an extent that “a husband is not regarded as the guardian of the wife, and both the parents equally share responsibility of the child born from such wedlock.”
The commission, however, recognised that though Hindu law has been codified, it is not without its share of problems. “While the law has now recognised certain rights, it has, at the same time either bluntly or latently, kept women at the lower pedestal than men. The notion, men being superior and thus in control, still persists,” says the report.
Under Muslim law it has been recommended that “a Muslim mother should also be treated as the natural guardian of the minor, both the parents should be at an equal footing. Further, in the matter of custody a father should also get an equal opportunity to be considered as a custodian”.
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