Here Is A Summary Of Law Commission’s Suggestions In Its Consultation Paper On ‘Reform Of Family Law’

On the day its term comes to an end, the Law Commission of India has released a Consultation Paper on ‘Reform of Family Law’.The Paper suggests a series of amendments to personal laws and further codification of certain other laws, particularly with respect to succession and inheritance. The suggestions also make an attempt at addressing the lacunae in laws such as the Special Marriage Act, 1954 and the Guardians and Wards Act, 1869.Since several of these issues such as polygamy, nikah halala, settlement of a Parsi wife’s property for benefit of children, as well as the law on adultery are presently sub judice before the Supreme Court, they have been discussed in the paper but comprehensive changes on some of these issues have not been suggested at this stage.Age of consent for marriageThe Commission advocates for change in the age of consent for marriage, opining that the current difference of eighteen years for girls and twenty-one years of age for boys “simply contributes to the stereotype that wives must be younger than their husbands”.Strongly asserting on the equality between spouses, the report states, “If a universal age for majority is recognised, and that grants all citizens the right to choose their governments, surely, they must then be also considered capable of choosing their spouses. 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 recognized 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. The difference in age for husband and wife has no basis in law as spouses entering into a marriage are by all means equals and their partnership must also be of that between equals.”Marriage and DivorceAdultery law: The paper notes that the judgment of the Constitution Bench in Joseph Shine v. Union of India is awaited, and hence does not make any suggestion in this regard. It, however, urges a consideration about the utility or the lack there of, of a provision such as 497 of the Indian Penal Code.Grounds for divorce (No-fault Divorce): The Commission reiterates the suggestion made by it in its 71st Report on ‘Hindu Marriage Act, 1978’, wherein it had observed that restricting divorce to matrimonial disability results in an injustice in cases where neither party is at fault, or if the fault is of such a nature that the parties do not wish to divulge it and yet the marriage cannot be worked out.It states, “It refers to a situation where the emotional and other bonds, which are the essence of marriage, have disappeared and only a façade remains. This commission echoes the suggestion that 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. Not to dwell on the ‘wrongs’ of the past.”It then emphasises on encouraging a simplified procedure for divorce, for sustaining a healthy perception of marriage which is free of any discrimination or violence.Community of Property upon Divorce and Maintenance: The paper recommends that a no-fault divorce must accompany community of self-acquired property, owing to the fact that women are usually left in a particularly vulnerable position while allowing for immediate and unilateral divorce.It therefore suggests that regardless of whether the wife ‘financially’ or ‘monetarily’ contributes to the family income, her contribution to a household in terms of household labour, home management, and child bearing and care should entitle her to an equal share in a marriage and thus all property for income gained after marriage should be divided equally upon divorce.Rights of Differently-Abled Persons in Marriage: The paper recommends amendments to exclude from grounds for divorce forms of illnesses that can be cured or controlled with adequate medical treatment or counselling.It further suggests that general reference to terms such as ‘unsound mind’, ‘lunacy’, ‘mental disorder', need to be broken down and analysed further.Bigamy upon conversion: The paper reiterates the recommendations made by the Law Commission’s 227th report, which had exclusively dealt with the subject of bigamy by conversion. The Report had recommended that Section 16 (legitimacy of children of void and voidable marriages) of the Hindu Marriage Act be amended to include all children born out of wedlock. It had further suggested that the term ‘illegitimate’ should not be used in any statute or document.Sikh Law: The paper acknowledges the fact that there has been a long-standing demand for registering marriages under the Anand Marriage Act, 1909 for Sikh couples who do not wish to use the provisions of the Hindu Marriage Act, 1955. It ...

Here Is A Summary Of Law Commission’s Suggestions In Its Consultation Paper On ‘Reform Of Family Law’

Apoorva Mandhani

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