More Menu

Personal Laws and Uniform Civil Code

byPosted at
This blog will examine Indian family law. Family law in India is founded on our religious identity, as most of us are aware. These are referred to as personal laws for this reason. As a result, India's regulations around marriage vary depending on the community's religion. The state is required by Article 44 of our Constitution to enact the Uniform Civil Code, or UCC, which will provide uniformity to India's marriage regulations. In this session, we'll examine the several family-related laws in India as well as the ideas of personal laws and the uniform civil code.

Content

  1. Introduction
  2. Personal Laws in India and Uniform Civil Code
    1. Personal Laws in India
    2. Uniform Civil Code
  3. Family Laws in India
    1. Common Laws in Certain Matters
    2. Hindu Law
    3. Muslim Law
    4. Christian Law

Introduction

This blog will examine Indian family law. Family law in India is founded on our religious identity, as most of us are aware. These are referred to as personal laws for this reason. As a result, India's regulations around marriage vary depending on the community's religion. The state is required by Article 44 of our Constitution to enact the Uniform Civil Code, or UCC, which will provide uniformity to India's marriage regulations. The Special Marriage Act and the Indian Succession Act are two examples of civil laws governing marriage and inheritance in India. In this session, we'll examine the several family-related laws in India as well as the ideas of personal laws and the uniform civil code.

Personal Laws in India and Uniform Civil Code

Personal Laws in India

Indian Personal Laws Personal laws, a relatively new phenomenon in India, are primarily legislation passed by the Parliament for various populations. The tribe customary law is an exception to this rule. Although personal laws vary according to religious affiliation, they all share many characteristics with English marriage and divorce law. Certain components of particular religious traditions are recognised and approved by the law. It is also acceptable to follow some traditional customs. For instance, even after the Hindu Succession Act was passed in 1956, the practise of coparcenary property, which excluded women from claiming it, was maintained. This remained the case until the passage of the Amendment Act in 2005, which amended the law to allow women to become coparceners. With regard to succession to property, including women's property, marriage, divorce, maintenance, dower, gifts, guardianship, and trusts, the Muslim Personal Law (Shariat Application) Act of 1937 makes Shariat (or Muslim Law) applicable to those ruled by Islam.

There are numerous overlaps among the family laws in India, as may be seen by looking at them. For instance, many laws, such as Section 125 of the Code of Criminal Procedure (CrPC), are applicable to many communities and have identical rights realisation processes. Most laws also have similar reasons for divorce. Several of the customary practices have undergone legal modification, while others have been preserved. In India, the majority of rules governing marriage and other elements of private life have been amended through the legal system, and up until now, those changes have been motivated by community-based requests. Hindu succession rules, for instance, make patriarchal families the norm and shastric marriages with the saptapadi the only accepted form of matrimony, prohibiting other types of acknowledged Hindu marriages like gandharvavivah and making them unlawful. In addition to granting women the ability to inherit property and file for divorce, ancient Hindu law previously protected the rights of illegitimate children, especially those of the dasiputra. This is the other significant change in Hindu law.

Uniform Civil Code

Article 44 of the Constitution of India states that 
“The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
The Directive Principles of State Policy include this as a component. Since the British era, interfering with personal laws has been a contentious matter, and communities have wished for their religious or customary laws to take precedence. When Hindu law was being attempted to be codified shortly after independence, there was also opposition to the codification and reform of Hindu law. The right to freedom of religion, which is protected by Article 25 of the Indian Constitution, and the cultural rights of minorities, which are protected by Article 29, are both basic rights that define the debate over reforming personal law or creating a uniform civil code. The issue has been framed as the community's right to manage its business in religious or personal matters without intervention from the state, as well as the right to equality and the prohibition of discrimination on the basis of religion. The split between the public and private spheres, in which the state rules over the former and the community or family over the latter, has been another problem. As a result, the state's interference has been viewed as going beyond the scope of its legal authority.

Soon after the Indian Constitution went into effect in 1952, the State of Bombay v. NarasuAppa Mali case before the Bombay High Court saw the first constitutional challenge to the ability of the state to intervene with personal laws. The Bombay Prevention of Hindu Bigamous Marriages Act, 1946, was enacted by the Bombay legislature. The statute was challenged on the grounds that Muslims had been excluded, and that this constituted a violation of Article 15 in addition to violating Hindu men's freedom to exercise their religion in accordance with Article 25. The Bombay High Court determined that because the institution of marriage differed for Muslims and Hindus and because this act constituted a social reform, there would be no discrimination between the two groups. The Court further declared that because "personal laws" did not constitute legislative or state discrimination, they would be immune from the applicability of Fundamental Rights. So, both of the arguments were employed in the first challenge.

Later, Ahmedabad Women's Action Group (AWAG) challenged all discriminatory sections in all personal laws on the grounds of gender discrimination and not religious prejudice. A list of all personal law provisions that discriminated against women was included in this petition. The Supreme Court ruled that because the issue involved state policies, they would not intervene with such rules. The Muslim husband in Shah Bano's case had contested the payment of maintenance under Section 125 of the CrPC to his divorced wife on the grounds that Shariat prohibited the payment and that it took precedence over the secular law. In both cases, the Supreme Court itself had called for the state to draught a Uniform Civil Code. In this decision, the Supreme Court concluded that Shariat also forbade the payment of support to the divorced wife and urged for the establishment of the Uniform Civil Code, rejecting the argument that Shariat excused the payment. In the second instance, Hindu men who had engaged in bigamy converted to Islam. The Supreme Court ruled that conversion would not prevent the wife from bringing a bigamy charge against the Hindu husband and reiterated the need for the adoption of the Uniform Civil Code. A Muslim woman named Shayara Bano petitioned the Supreme Court in 2016 challenging the triple talaq, polygamy, and halala laws of the Muslim Personal Law. This raised the subject once more. In India, there is considerable disagreement over the issue.

Family Laws in India

Did You Know?

The different laws that govern marriage and divorce for different communities are:
  • The Muslim Personal Law (Shariat Application) Act of 1937 and the Dissolution of Muslim Marriage Act, 1939 for Muslims, 
  • The Indian Christian Marriage Act, 1872 and the Divorce Act of 2001 for Christians 
  • The Parsi Marriage and Divorce Act 1936 
  • Hindu Marriage Act, 1955 for Hindus 
  • Special Marriage Act 1954 for those wanting to marry without going through a religious ceremony
In addition to this, there are three additional laws for Hindus that deal with various facets of their family law. They are The Hindu Minority and Guardianship Act, The Hindu Adoptions and Maintenance Act, and The Hindu Succession Act, all of which were passed in 1956. The Hindu personal laws are made up of these three statutes and the Hindu Marriage Act.

Common Laws in Certain Matters 

Law of Succession

The Indian Succession Act of 1925 contains various sections that govern succession for all communities other from Hindus. In any case, the law designates the immediate family as the legitimate heirs, including Hindus. The wife, husband, and children, including the offspring of pre-deceased children, are the legal heirs in all communities. Hindus believe that if a man's mother survives him, she will also become his successor. The list of heirs is substantially longer for Muslims. Except for Christians, where if a man dies leaving no children, then the entire property will devolve on the wife if it is of the amount of Rs. 5000 or less, and if more, then half the property will devolve on her and the remaining on the other legal heirs of the children. In other communities, however, the presence of children and spouses disinherits other relatives who inherit in the absence of those mentioned above. The ability to pass away self-acquired property through a will is a crucial feature of inheritance law. This means that I can write a will, which must be witnessed by two people, disinherit my legal heirs, and leave the property to anybody I choose. The exception to this rule is Muslim law, which only allows for a one-third distribution of property to non-heirs. As a result, no legitimate heir can be disinherited and only has the ability to have his or her portion of the estate decreased by one-third. Muslims are also allowed to make oral wills, just like armed people.

Law of Maintenance

As was already said, Section 125 of the CrPC is another common law. This clause guarantees the dependents' upkeep by a man of suitable age and income. The dependents include the spouse, including a divorced spouse who hasn't remarried, the parents, any small children, including biological and adopted, and any significant children who are physically or intellectually challenged. The section's goal is to prevent vagrancy, which is to discourage someone from turning to crime or socially unacceptable activities like prostitution or begging. However, under the following situations, a married woman is not entitled to support from her husband:
  • She is a Muslim divorced woman- she has to then approach the court under the Muslim Women Protection of Rights on Divorce Act 
  • She is not legally married- A Hindu woman in a void marriage can however get maintenance under the Hindu personal law 
  • She has remarried- on remarriage, her maintenance comes to an end 
  • She is living in adultery 
  • If the couple are living separately under mutual agreement
The amount of maintenance is determined by the man's capacity, the claimant's income, the parties' level of living, their relationship status, and the necessity of the claimant.

In a void marriage where the Hindu wife learned after marriage that the husband had been married to another woman before he wedded her, the Supreme Court ordered in 2013 that maintenance under Section 125 CrPC be paid to the lady. In this case, the court decided that "social justice adjudication" should actually be "social context adjudication," requiring the judge to give the weaker parties justice while also taking into account the socioeconomic disparities between the parties. The court stated that it should be sensitive to social reality and that denying the woman's request for maintenance would "amount to awarding the husband a premium for cheating the wife."

Law of Civil Marriage

The religious rites according to the specific community must be performed in accordance with all personal laws. A lawful marriage can only be conducted between members of the same faith, i.e., the husband and the wife, with the exception of the Indian Christian Marriage Act, which allows a marriage between a Christian and a non-Christian. Similar to this, Muslim law declares voidable marriages between Muslim men and non-Kitabiya women as well as marriages between Muslim women and non-Muslim men. A Kitabiya woman is one who practises a religion that is controlled by a Holy Book. Hindu law recognises unions between Hindus of various sects or denominations, such as a Bengali and a Sikh or a Jain and a Lingayat. The marriage can take place regardless of caste or region. However, Hindu law does not recognise unions between Hindus and non-Hindus that follow Hindu rites and ceremonies. However, the primary prerequisite for all religious unions is that the religious rituals necessary for a marriage to be recognised by the relevant community are carried out. Thus, while a Hindu marriage would be null and void, a Muslim marriage would be voidable if, for instance, a Hindu and a Muslim were to get married in accordance with each of their respective personal laws without converting. Thus, one of them would need to convert for their marriage to be legal.

The Special Marriage Act of 1954, which allows a civil marriage or a marriage without the use of any religious ceremonies between individuals who meet the requirements for a legally valid marriage, can be used if they do not wish to convert. Unless they are Hindus, in which case the Hindu Succession Act applies to them, these couples are also subject to the Indian Succession Act. This law's conditions for marriage are as follows:
  • Neither party should have a spouse living and be in a valid marriage 
  • Husband to have completed 21 years of age and wife to have completed 18 years of age
  • Neither party should be incapable of giving consent due to unsoundness of mind or be capable of giving consent but has been suffering from a mental illness such that makes one unfit for marriage or procreation of children. Neither of the intending spouses should be subject to recurrent attacks of insanity. 
  • They should not be within the degrees of prohibited relationship which is specified in the First Schedule and comprises 37 relationships each for both men and women and is generally restricted to lineal ascendants and descendants upto three generations.
The marriage is void if any of the aforementioned requirements are not met. In addition, if the respondent was impotent both at the time of the marriage and the filing of the lawsuit seeking a declaration of nullity of marriage, the marriage would be void. If any of the following circumstances occurred, a marriage would be voidable under the Special Marriage Act:
  • Marriage was not consummated owing to the willful refusal of the respondent 
  • Respondent wife was pregnant with someone else’s child at the time of marriage and the husband was unaware of this fact provided that he filed the petition within a year of marriage and that marital relations did not take place between them with husband’s consent after he discovered the fact 
  • Consent of the party was got by coercion or fraud provided that the petition is filed within a year of the coercion ceasing or fraud being discovered and that marital relations have not taken place with the consent of the person who was defrauded or coerced.
The offspring of void and voidable unions would be considered legitimate. A marriage performed under personal law may also be registered under the Special Marriage Act, in which case this law, not personal law, would control the parties.

Child Marriage

The Prohibition of Child Marriage Act forbids the union of females under the age of 18 and boys under the age of 21. However, it simply makes the marriage voidable in the case of the kid, who can renounce the marriage within two years after reaching majority, rather than rendering the marriage invalid. The participants to such weddings enjoy the same rights over one another as in a legal marriage, and the children are legitimate. However, some types of child marriage, such as those that violate the following requirements, are invalid:
  • Where the child is kidnapped from the guardian’s control and is either through deceitful means or through force taken to some other place and married 
  • Where the marriage if for purposes of trafficking of the minor or for her sale or use in prostitution or for immoral purposes 
  • Where a Magistrate has issued an injunction order on application by a Child Marriage Prohibition Officer or on his own (suomoto) or on the application of any other person prohibiting the marriage from being conducted
Also covered by this law are all communities. However, it should be noted that in order for weddings to be valid under the Special Marriage Act and the Christian Marriage Act, both spouses must be at least 18 years old for women and 21 years old for males. Muslim law prohibits child marriage because it is a contract between two consenting adults and marriage is only permitted when both parties are over the age of puberty, which is generally considered to be 15 years old. The Delhi High Court ruled that a marriage between a 15-year-old girl who had eloped and married was not void but just voidable since the girl had reached puberty in a case where the mother had filed a FIR against the husband.

Guardianship and Adoption

Adoption and wardship For all communities with the exception of Hindus, the Guardians and Wards Act administers guardianship. The law mandates that all individuals have a guardian until they reach the age of majority, which is 18 years old. Other localities are not covered by any laws allowing adoption, which is managed by the Juvenile Justice (Care and Protection of Children) Act of 2015. (JJ Act). The Supreme Court ruled in Shabnam Hashmi's case (15) that personal laws cannot be used to block adoption by prospective parents and declared that the JJ Act is a secular law that permits adoption by any community, just as the Special Marriage Act is a secular law that permits marriage between members of any community. The grounds for divorce under practically all laws are the same, which is another characteristic shared by all laws. The same process is used to get relief in all matrimonial cases, which are brought before the Family Court when there is one and the Civil Court when there isn't.

Hindu Law

Four laws make up the personal laws of Hindus, as was already mentioned. Major changes among Hindus were brought about by the Hindu Marriage Act, some of which are listed below:
  1. It brought in homogenous law for all communities identified as Hindus, which was an exclusionary definition rather than an inclusive one as it included all persons who were not Christians, Muslims, Jews and Parsis. The most radical change it brought about was the breaking of caste barriers to marriage as it permitted all marriages except those barred due to close family ties which are provided under the law
  2. It ended polygamy amongst Hindus and gave equal rights in marriage to women. However it protected the women in illegal marriages by giving them the right to maintenance and their children would be considered legitimate 
  3. It gave property rights to women for the first time and gave equal inheritance rights to women and gave them absolute right over their property 
  4. It changed the Hindu marriage from a sacrament to a contract by giving Hindu women belonging to certain castes the right to divorce and made marriages which are without the consent of the parties voidable 
  5.  Even before the passing of the Hindu laws in existence today, the Hindu Gains of Learning Act of 1930 had changed property relations amongst Hindus by introducing the concept of self-acquired property to the community which practiced the notion of undivided family property. The present law maintains both the types of property and till 2005 women were excluded from ownership of the undivided family property 
  6. It recognizes customary laws and practices and permits customary divorce where the same is continuously in practice.

Muslim Law

Shariat is still a separate feature of Muslim law, and the law specifically declares that Shariat will apply. Although triple talaq and the right to polygamy are well-known features of Muslim law, this system also has many progressive elements, such as:
  1. Marriage is a contract under Muslim Law and hence it has to be entered into by two consenting adults. Refusal to consent would result in the marriage not taking place. Thus the woman has the same right to consent as the man. Marriage comes to an end either on divorce or on death of one of the parties. The woman also has the right to unilateral divorce, which is known as Khulla and Islam also recognizes the right to mutual consent divorce which is known as Mubbarat. Further the husband gave delegate to the wife the right to divorce and this is known as Talaq e Tafweez. The Dissolution of Muslim Marriages Act gives the Muslim women the right to move the court for divorce. 
  2. The woman has the right to inherit property which is half that of the man but this right cannot be willed away. The wife further has the right of Mahr at the time of marriage which is the sum given to her by the husband as a mark of respect. Mahr is of two types- Prompt and Deferred. Prompt Mahr must be paid at the time of marriage and the wife also has the right to refuse to consummate the marriage due to its non-payment or defend the husband’s suit of restitution of conjugal rights successfully on this ground. The deferred Mahr has to be paid at the time of dissolution of marriage either by death or divorce.

Christian Law

  1. There are two laws one governing marriage, which is the Indian Christian Marriage Act and the other governing divorce, The Divorce Act. The law permits religious marriage between a Christian and a non Christian. The act applies to the entire country except for the states of Manipur, Jammu and Kashmir and the Travincore- Cochin state that existed prior to 1956. 
  2. The Divorce Act initially gave limited rights of divorce and the same was challenged and in 2001 the law was amended to expand the right to divorce and also introduced divorce by mutual consent to bring it on par with other personal laws. Hence the grounds of divorce are now the same for all personal laws as well as the Special Marriage Act (except Muslim law where the law permits divorce without any fault ground). 
  3. Canon Law or religious law still plays an important role in Christian law and if a divorcee wants to marry again in the Church they would have to get their marriage annulled by the Church too. The Church also determines the degree of prohibited consanguinity or affinity. The state law does not define the term and this then differs from denomination to denomination but this is a legal impediment. 
  4. A deserted wife has the right to approach the court and get an order that no one can claim any property that she may have come under possession or which belongs to her towards payment of any debt of her husband or by his heirs 
  5. Christian law permits to enter into post nuptial or ante nuptial agreements with regards the settlement of property to the benefit of husband or wife or children and these are taken into account by the courts under Section 40 of the Divorce Act while considering the matter regarding divorce or nullity of marriage. But no agreement that benefits the parents at the cost of the children will be taken into account.

Reference

  1. Marc Galanter. The Displacement of Traditional Law in Modern India. Journal of Social Issues Vol.XXIV No.4. 1968. p.65-91 
  2. Lloyd I. Rudolph and Susanne Hoeber Rudolph (1965). Barristers and Brahmans in India: Legal Cultures and Social Change. Comparative Studies in Society and History. Vol. 8, No. 1.Oct., 1965. p. 24-49 
  3. Flavia Agnes. Family Law Vols. I and II, New Delhi: Oxford University Press. 2011 
  4. Eleanor Newbigin, Reform in late colonial India: The codification of personal law and secular citizenship : Revisiting the history of law, Indian Economic Social History Review. 2009. p. 46: 83 
  5. Ratna Kapur and Brenda Cossman. Subversive Sites: Feminist Engagements with Law in India. New Delhi: Sage Publications.1996. 
  6. Madhu Kishwar, Codified Hindu Law: Myth and Reality, Economic and Political Weekly, Vol. 29, No. 33 (Aug. 13, 1994), pp. 2145-2161
Post a Comment
Tag, ,

Comments

Thank You